The U.S.-Led Proliferation Security Initiative and UNCLOS: Legality, Implementation, and an Assessment
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
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.154Statement of Frank Gaffney, Jr.: Oversight Hearing to examine the "United Nations Convention on the Law of the Sea". (March 24, 2004) ." Testimony before the U.S. Senate Committee on Environment & Public Works, March 24, 2004. [ More (3 quotes) ] 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.
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.