Proliferation Security Initiative
Prime Minister Datuk Seri Najib Tun Razak announced recently Malaysia’s decision to endorse the Proliferation Security Initiative (PSI).
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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.
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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.”"
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Implementing the maritime and national security strategies in the current geopolitical environment requires that U.S. armed forces be provided not only with the convention’s rights, freedoms, and protections necessary to facilitate military operations but also with the legal legitimacy necessary to build partnerships, trust, and confidence with nations around the globe. Currently, American armed forces are ham- strung when the United States publicly solicits other nations to join it in enforcing the rule of law, while at the same time refuses to join the international legal frameworks necessary to establish such rule. The U.S. failure to join the convention has directly prevented expansion of the PSI with some critically important Pacific countries. Although these countries are supportive of U.S. counterproliferation efforts, they indicate that U.S. refusal to join the convention has eroded their confidence that the United States will abide by international law when conducting PSI interdiction activities. Remaining outside the convention risks further damaging American efforts to develop cooperative maritime partnerships, such as PSI, and undermining implementation of U.S. security strategies that require the confidence and trust of other nations.
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The Proliferation Security Initiative (PSI), announced by President Bush on May 31, 2003, is an international effort promoting the global interdiction of shipments of weapons of mass destruction (WMD) and their delivery systems worldwide.25 On September 4, 2003, the eleven participating nations released a statement in Paris outlining PSI's initiatives.26 The aim of PSI is to create an enhanced approach to preventing proliferation of WMD.27 In order to ensure congruence with other bodies of law, PSI specifically states that it will be implemented as is consistent with national law and international law.28 All of the PSI partners, with the exception of the United States, are already parties to UNCLOS. This fact demonstrates that state national security interests under the PSI are not put in jeopardy by becoming a party to UNCLOS. Indeed, John Bolton, former United States ambassador to the United Nations, argued that UNCLOS will not impede the goals of the PSI in testimony before the Senate Armed Services Committee, stating: "Ifthe Senate were to ratify the Law of the Sea Treaty and the president were to make the treaty [...] it would not have any negative impact whatsoever on PSI." "30
"National Security Implications in the Global War on Terrorism of the United States Accession to the United Nations Convention on the Law of the Sea
." Dartmouth Law Journal
. Vol. 7, No. 2 (2009): 117-131. [ More (9 quotes) ]
Myth: The convention is harmful to the Proliferation Security Initiative (PSI). Again, this is false. The PSI has already been negotiated explicitly in conformance with the convention, and not surprisingly so, since the nations with which we coordinate in that initiative are parties to the convention. This charge apparently rests on the false belief that if the United States does not adhere to the convention, it will be free from any constraints in relation to oceans law. Again, this is a false assumption; we are today a party to the 1958 Geneva Convention that is much more restrictive than the 1982 convention now before the Senate. This charge is also misguided as it fails to understand the critically important interest we have in protecting navigational freedoms on, in and above the world's oceans. The convention allows our vessels to get on station, a capability that is essential before any issue even arises about boarding. Moreover, we emphatically do not want a legal regime that would permit any nation to seize U.S. commercial vessels in the world's seas. That would be a massive loss of U.S. sovereignty! The PSI was carefully constructed with parties to the 1982 convention, using the flag state, port state and other jurisdictional provisions of the 1982 convention precisely to avoid this problem. Nor is this charge at all realistic in failing to note that nothing in the Law of the Sea Convention could or does trump our inherent rights to individual and collective self-defense. Most recently, we note, Under-Secretary of State John Bolton, a principal architect of the PSI, testified to the Senate that adhering to the convention will not harm the PSI.
"The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: why the critics are wrong.
." Journal of International Affairs
. Vol. 59, No. 1 (Fall/Winter 2005) [ More (18 quotes) ]
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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
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I would also like to address the relationship between the Convention and the President’s Proliferation Security Initiative, an activity involving the United States and several other countries (all of which are parties to the Convention). The Convention will not affect our efforts under the PSI to interdict vessels suspected of engaging in the proliferation of weapons of mass destruction. The PSI requires participating countries to act consistent with national legal authorities and “relevant international law and frameworks,” which includes the law reflected in the 1982 Law of the Sea Convention. The Convention’s navigation provisions derive from the 1958 law of the sea conventions, to which the United States is a party, and also reflect customary international law accepted by the United States. As such, the Convention will not affect applicable maritime law or policy regarding interdiction of weapons of mass destruction. Like the 1958 conventions, the Convention recognizes numerous legal bases for taking enforcement action against vessels and aircraft suspected of engaging in proliferation of weapons of mass destruction, for example, 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, either by general agreement in advance or approval in response to a specific request, waive in favor of other States); and universal jurisdiction over stateless vessels. Further, nothing in the Convention impairs the inherent right of individual or collective self-defense (a point which is reaffirmed in the proposed Resolution of Advice and Consent).
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Moreover, current U.S. nonproliferation policy relies on the Convention. The Proliferation Security Initiative, an effort among more than 20 states, led by the United States, to share intelligence and stop weapons shipments, must conform to the Law of the Sea Convention. The other states in the PSI are party to the Convention.13 In their Statement of Interdiction Principles, the PSI parties agree to adhere to international law.14 In effect, this agreement means that when the United States works with allies as part of the PSI, it agrees to observe the rights of innocent passage and freedom of the seas. This agreement costs America nothing, because it already recognizes those rights.
The United States could, of course, forcibly violate established rights of free passage in order to interdict weapons shipments. But this policy would be disastrous for two reasons. First, it would undermine the right of free passage, which is essential to U.S. trade and force projection. Second, it would destroy the Proliferation Security Initiative. The PSI cannot work without the cooperation of our allies, and their cooperation depends on the Initiative’s adherence to the Law of the Sea.
Instead of fighting proliferation outside of international law, America can use international law to fight proliferation. One way to allow interdiction of weapons shipments is to alter the Convention to make proliferation grounds for interdiction on the high seas or in coastal waters. It would take a long negotiating effort, but the United States might succeed. By staying outside the Convention, the United States forgoes this opportunity but remains bound by the legal restrictions on interdiction.
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.
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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.
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.