U.S. ability to conduct maritime interdiction operations would be curtailed by UNCLOS
If the United States ratifies the Convention on the Law of the Sea, the legality of maritime interdiction operations whether to stop terrorist attacks or prevent nuclear proliferation will, depending on the circumstances, be left to the decision of one of two international tribunals.
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Terrorists have obvious reasons to take their operations out to sea. An attack on an oil tanker, for example, could do vast environmental damage and have a sizable impact on international oil markets. Seaborne shipping may be used to transport missiles and other weapons components not easily sneaked through airports. Currently, the United States does not claim the right to stop any and all ships on the high seas, merely on general suspicion. Since 2004, the United States has encouraged other nations, under the American-led Security Proliferation Initiative (SPI), to sign agreements authorizing American naval patrols to inspect merchant ships flying their flags when there is reason to fear the ships are engaged in illicit activities. While more than half the ships engaged in international commerce are covered by these agreements, many are not. American policy implicitly acknowledges that stopping other ships on the high seas would usually be improper. But special circumstances might justify exceptional measures.
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UNCLOS III provides that, if a ship or its crew are seized on the high seas, the flag state can appeal to the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, for a prompt decision on the legality of the seizure.3 The treaty allows states to opt for other forms of arbitration on other disputes, but other forms of arbitration require all nations involved to agree on a specific panel of arbitrators. The only important category of dispute where one party can force another to answer before ITLOS is when a ship has been detained on the high seas and the complaining party seeks its immediate release.
Seizing a ship on the high seas without the consent of its home government would inevitably trigger a diplomatic confrontation. But in the right circumstances, the United States or its allies might feel obliged to act first and try to handle the diplomatic protests later. If intelligence gives reasonably firm indications of an imminent terror attack to be launched from a particular ship, the U.S. could insist on intervening, claiming a right of self-defense that supersedes the general “rules of the road” at sea. Alternatively, the United States might claim that a ship operated by terrorists was so closely analogous to a pirate ship that intervention could be justified under the UNCLOS exemption for piracy. In still another variant, the United States might interpret a bilateral agreement with the flag state as covering a particular intervention, while the flag state insisted on a different interpretation. In any of these cases, the flag state would likely sit on the sidelines while the ship’s operators pursued a claim on their own initiative, “on behalf of the flag State,” as UNCLOS allows.4 It is easy to imagine situations in which U.S. intervention might trigger a complaint to ITLOS. It is hard to imagine situations in which ITLOS would be other than a complicating factor in ensuing U.S. diplomacy toward the flag state.
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While UNCLOS does contain provisions that encourage cooperation to combat illicit activities at sea, it could also be argued that some of the Convention’s provisions actually hinder such efforts. For instance, UNCLOS impedes maritime interception operations (MIO) in the territorial sea, where the coastal state enjoys “sovereignty” (Article 2). This raises a practical, not a hypothetical, problem for maritime security. Tens of thousands of tons of diesel fuel were smuggled out of Iraq in violation of UN Security Council Resolutions (UNSCR) 661 (1990) and 665 (1990) through the Iranian territorial sea. Coalition forces were aware that the smuggling activities were ongoing, but were unable to intervene because the UNSCRs did not authorize entry into Iran’s territorial sea to enforce the sanctions.18 In the case of counter-piracy operations off the Horn of Africa, UNSCR 1816 (2008) authorizes coalition forces to “enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea . . . and use, within the territorial waters of Somalia . . . all necessary means to repress acts of piracy and armed robbery,” but it falls short of authorizing entry into any other nation’s territorial sea to repress piracy and armed rob- bery at sea. In fact, during negotiations for UNSCR 1816, Indonesia, China and other states made clear that the Resolution did not set a precedent for future counter-piracy operations in any other nation’s territorial seas. Moreover, UNCLOS Article 111 requires coalition forces to break off hot pursuit of a vessel engaged in piracy on the high seas when that vessel enters the territorial sea of its own state or of a third state.
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Similarly, counter-proliferation efforts at sea are hindered by UNCLOS Article 92, which provides that “ships sail under the flag of one state only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.” That means that a warship must have the consent of the flag state or the master to board and search a foreign flag vessel encountered seaward of the territorial sea of another nation. The enforcement regime established in both UNSCRs 1718 (2006) and 1874 (2009), which ban most arms transfers to and from North Korea, is based on exclusive flag state jurisdiction. Although UNSCR 1874 contains an enhanced maritime cargo inspection regime, it is still dependent on flag state consent (Operative Paragraph 12). UNSCRs 1696 (2006), 1737 (2006), 1747 (2006) and 1803 (2008), which impose a similar ban on material related to Iran’s nuclear weapons program, are likewise based on flag state jurisdiction. Interdiction efforts on the high seas under other non-proliferation initiatives, like the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)19 adopted by the International Maritime Organization (IMO) and the Proliferation Security Initiative (PSI)20 announced by President Bush in March 2003 to combat the growing threat of WMD proliferation, also suffer from the same weakness – they are based on flag state consent. It is highly unlikely that Iran or North Korea will give consent to a foreign warship to board one of its vessels at sea. In short, in could be argued that UNCLOS allows North Korea and Iran to transport WMD-related materials with impunity, hiding behind the concept of exclu- sive flag state jurisdiction on the high seas.
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Regarding the PSI in particular, despite wide international support for the initiative – 95 participating states as of May 2009 – opponents to PSI have relied on UNCLOS to attack the legitimacy of the initiative. Clearly, coun- tries of proliferation concern like Iran and North Korea are going to oppose PSI. However, there are other important countries that object to the initia- tive, in part because of UNCLOS. For example, an article by Rick Rozoff discussing the PSI reports that Indian officials have described PSI as a “con- troversial U.S.-led multilateral initiative . . .” with “dubious legality . . .” that “undercuts a . . . multilateral and balanced approach to the problem of proliferation.”21 Rozoff further states that Malaysia’s Deputy Prime Minister has stated the PSI violates Malaysia’s national sovereignty and that Indonesia is also opposed PSI, indicating that the initiative violates UNCLOS. Similarly, Mark Valencia stated in an essay posted on the Nautilus Institute Policy Forum Online (08-043A: May 29, 2008)22 that China and Pakistan are also opposed to the initiative. Specific articles of UNCLOS cited by the opponents to PSI include Articles 17 and 19 (right of innocent passage), Article 33 (contiguous zone), Articles 38 and 39 (right of transit passage), Part V (EEZ), and Article 88 (high seas reserved for peaceful pur- poses).23
Far from treating such seizures as remote hypotheticals, the Bush administration has invested considerable effort in a "Proliferation Security Initiative" (PSI) under which the United States has signed agreements with states that provide flags for most of the world's commercial shipping. These agreements may strengthen U.S. claims to intercept suspicious ships on the high seas, when flying with markings from the most common flagging states (such as Belize, Panama, and Libya, which have all signed such agreements). But the PSI agreements do not make clear when or whether ships or crews may be subject to long-term detention, and all the agreements stipulate that they do not supersede accepted standards of international law.
If we ratify the Law of the Sea treaty, even a PSI agreement with the flag state won't necessarily keep a dispute about the seizure from winding up before the Law of the Sea tribunal in Hamburg. That tribunal has asserted its right to hear claims for "prompt release" when filed by owners or operators of a ship, even when the nominal flag state takes no role in the proceedings. In past cases, ITLOS has ruled that ships cannot be detained, even when claimants refuse to supply full information about how the ship was acquired and on whose behalf. So while we have jealously reserved the right to detain terror suspects captured on land, we will, if we ratify this treaty, give up our right to decide when we can hold terror suspects seized at sea.
Take the question of suspects captured in Afghanistan--and the few captured elsewhere who have been brought to Guantánamo. Are they prisoners of war, covered by the 1949 Geneva Convention on this subject? The U.S. position is that such unlawful combatants--those who do not fall within the categories set out in the convention--are neither legitimate prisoners of war nor need they be treated as criminal suspects, who (according to international human rights conventions) must be either prosecuted or released.
The Bush administration has sought, in various ways, to mollify critics of its detention policy. Congress and the Supreme Court have insisted on certain legal safeguards and may ultimately demand more. But would we like the matter to be settled for us, all at once, by an international tribunal?
That is exactly what the Law of the Sea treaty would do: If we seize and detain a foreign ship and/or its crew, we must arrange some form of international arbitration within 10 days or the Law of the Sea tribunal will have jurisdiction to hear appeals for "prompt release." It has heard about one case a year in this category, since it got organized in the late 1990s and has never encountered a case in which it regarded further detention as justified. So, if we commit to this treaty, we will commit to having ITLOS review any seizures made at sea.
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PSI is not compatible with LOST, despite proponents’ claims to the contrary. As a treaty, LOST is binding international law on the parties, whereas PSI is only an informal arrangement between certain nations, and carries no force as international law. The argument that PSI can be executed within the rules of LOST, even though LOST clearly prohibits boarding actions critical to PSI, ignores the fact that LOST outranks PSI in the hierarchy of international law.
As a result, unless one or more of the Treaty-approved circumstances for an at-sea intercept applies, LOST member states could be precluded from participating in such an action – even when there might be compelling evidence that nuclear or other WMD or their delivery systems were on board. As long as the United States continues not to be a LOST state party, it can always act unilaterally. That option, however, will be foreclosed, and our security possibly endangered as a result, if the Senate consents to the Treaty’s ratification.
In this connection, it must be noted that the Chinese and Russians have strenuously objected to the Proliferation Security Initiative, claiming that it violates LOST. They can be expected to seek mandatory dispute resolution of the matter should the United States become a state party. Should the ruling go against us, a critical tool in the nation’s effort to prevent the spread of nuclear, chemical and biological weapons and their delivery systems could be lost for good.
The United States should take the lead in developing new practices on the oceans that will at once facilitate commerce and peacetime deployment of warships but also protect our shores from the terrorist scourge. The President’s Proliferation Security Initiative is an example of such modern and creative thinking. This US-led multinational program of high seas interdiction and vessel boarding is barred by the Law of the Sea Treaty yet it is our overriding national security interest to execute. Ratification of the Treaty would effectively gut our ability to intercept the vessels of terrorists or hostile foreign governments even if they were transporting nuclear weapons. We must ensure that we not binding the government of the United States to a legal regime that makes us more vulnerable and trades the lives of our innocent citizens for the sake of participating in yet another unnecessary Treaty.
Yet another “environmental impact” could arise from limitations the treaty imposes on measures we might take to assure our national security and homeland defense. If, for instance, foreign vessels operating on the high seas do not fit into one of three categories (i.e., they are engaged in piracy, flying no flag or transmitting radio broadcasts), LOST would prohibit U.S. Navy or Coast Guard vessels from intercepting, searching or seizing them.
As you know Mr. Chairman, such constraints would preclude President Bush’s most important recent counterproliferation measure – the Proliferation Security Initiative (PSI). The same would be true, however, if the crew of the foreign ship was engaged not in the sort of activity the PSI is meant to interrupt (namely, the covert transfer of weapons of mass destruction and/or related equipment), but in the shipment of heavy crude oil or other toxic materials that could cause an environmental disaster were the vessel to be blown up or scuttled in or near our waters.