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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The US-developed PSI is directed toward preventing the illicit transportation by ships of weapons of mass destruction, their delivery systems and related materials. Under the Law of the Sea Convention and customary international law, a number of jurisdictional bases exist for stopping and searching ships suspected of being engaged in some sort of illicit activity. These include jurisdiction exercised by a State with respect to ships flying its flag or within its territorial sea, ports or contiguous zone, and stateless vessels. It is also permissible to stop and search a foreign-flag vessel with the permission of the flag State. The PSI builds on this latter basis of jurisdiction with a series of bilateral agreements by which the United States and its treaty partners agree in advance on a set of orderly procedures for the reciprocal granting of permission for visits and search of suspected ships and cargoes. There is nothing in the Convention that would change the law in any respect with respect to the US practices under the Proliferation Security Initiative. Likewise, with respect to intelligence operations, the Law of the Sea Convention contains no restrictions on US naval surveillance and intelligence operations not already included in the 1958 Convention on the Territorial Sea and Contiguous Zone to which the United States is already a party.
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The reality is that the increased legitimacy obtained through ratification of UNCLOS can be leveraged to enhance PACOM shaping operations in the South China Sea. Specifically, increased legitimacy would improve the legal standing of U.S. operations conducted under the Freedom of Navigation (FON) Program, and break down barriers currently restricting recruitment to the Proliferation Security Initiative (PSI). , In both cases this could potentially reduce the operational requirements of the theater commander and result in increased multilateral maritime security cooperation.
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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.