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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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.