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.
Quicktabs: Arguments
On this specific point, it is worth looking at the example of the President’s Proliferation Security Initiative, or PSI. PSI began in May 2003, when 10 like- minded countries joined the United States to prevent the proliferation of weapons of mass destruction, their delivery systems, and related materials. Those 11 countries endorsed a series of PSI founding principles, including two essential principles from an operational perspective: One, that all States have broad domestic authorities to act against proliferators and, two, that acting cooperatively, they can use those authorities and international law---including the Law of the Sea Convention--- to prevent proliferation. The Law of the Sea Convention recognizes numerous legal bases for taking action against vessels suspected of engaging in proliferation activities, including port State control measures, flag State authority, and the right of warships to approach and visit commercial vessels.
In just four years, PSI has expanded from its original 11 partner-nations to almost 90, and we have had specific operational successes in preventing the proliferation of weapons of mass destruction under PSI. However, our 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 convince their legislatures to endorse PSI. How, they ask us, can they 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, refuses to become a party to the Convention?
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.
[MYTH] The Convention adversely affects activities to be undertaken pursuant to the Proliferation Security Initiative.
- On the contrary, joining the Convention would strengthen PSI efforts.
- PSI’s own rules require that PSI activities be consistent with relevant international law and frameworks, which include the Convention’s navigation provisions.
- The Statement of Interdiction Principles pursuant to which the PSI operates explicitly specifies that interdiction activities under PSI will be undertaken “consistent with national legal authorities and relevant international law and frameworks.” The relevant international law framework for PSI includes customary international law that is codified in the Law of the Sea Convention.
- The Convention provides solid legal bases for taking enforcement action against vessels and aircraft suspected of engaging in proliferation of WMD, e.g., 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, by agreement, waive in favor of other States); and universal jurisdiction over stateless vessels.
- All of the United States’ partners in the PSI are parties to the Convention and accordingly observe its provisions.
- As Admiral Michael Mullen, Vice Chief of Naval Operations, testified before the Foreign Relations Committee, being party to the Convention “would greatly strengthen [the Navy’s] ability to support the objectives” of PSI by reinforcing and codifying freedom of navigation rights on which the Navy depends for operational mobility.
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.”36"Statement of Admiral Patrick M. Walsh: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (4 quotes) ]
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.
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.29 "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) ] 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
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.