Counterterrorism
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Deputy Secretary of State John D. Negroponte and Deputy Defense Secretary Gordon England maintain that the convention will enhance U.S. security. They argued in the Washington Times last monthReap the bounty — John D. Negroponte and Gordon England. — Washington Times — Jun 12, 2007 [ More ] that to meet the "complex array of global and transnational security challenges," the United States must have "unimpeded maritime mobility -- the ability of our forces to respond any time, anywhere, if so required."
This is true, but ratifying the convention won't bring this benefit. Instead it would put America's naval counterterrorism efforts under the control of foreign judges. Suppose the United States seizes a vessel it suspects of shipping dual-use items that might be utilized to build weapons of mass destruction or other tools of terrorism. It's not a wild supposition. Under the Proliferation Security Initiative, the United States has since 2003 secured proliferation-related high-seas interdiction agreements with countries such as Belize and Panama, which provide registration for much international shipping. If the United States ratifies the Convention on the Law of the Sea, the legality of such seizures will, depending on the circumstances, be left to the decision of one of two international tribunals.
The first is the International Tribunal for the Law of the Sea, based in Hamburg. Some members of the Hamburg tribunal come from countries naturally suspicious of American power, such as China and Russia. Others are not allied with the United States. Even judges from Europe and South America do not always see things the way U.S. military authorities do.
The second institution is a five-person international arbitration panel. The United States and the flag state of the seized ship would have input into the selection of some of these arbitrators. But the U.N. secretary general or the president of the Hamburg tribunal would select the crucial fifth arbitrator when, as would typically be the case, the state parties cannot agree. They must choose from a list of "experts" to which every state party to the convention -- not just China and Russia but other unfriendly nations such as Cuba and Burma -- can contribute.
[MYTH]: The Convention was drafted before—and without regard to—the war on terror and what the United States must do to wage it successfully.16 This is an irrelevant canard. It is true that the Convention was drafted before the war on terror. However, it enhances rather than undermines our ability to wage the war on terror. The robust maritime naval and air mobility assured by the Convention is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for U.S. forces, weapons, and materiel to get to the fight without hindrance—and ensures that they will not be hindered in the future.
Thus, the Convention supports the war on terror by providing important stability for navigational freedoms and overflight. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements. It is essential that key sea and air lanes remain open as an international legal right and not as a matter of approval from nations along the routes. A stable legal regime for the world’s oceans will support global mobility for our armed forces.
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.
Mr. Chairman, becoming party to the Convention will facilitate the prosecution of the war on terrorism in general, and the implementation of the President’s proliferation security initiative in particular. President Bush has emphasized that we cannot wait for the terrorists and their weapons to reach us. What is, or should be, clear from this is that we must exercise our global navigation and overflight rights and freedoms at sea anywhere in the world in order to reach our operational destinations. Not every government of the numerous countries past whose coasts our forces must travel to reach their destinations would necessarily wish to associate itself with every one of our operations. When we become party to the Convention, those governments will have an easier time explaining their acquiescence in our activities to domestic or foreign critics on the grounds of their treaty obligations to the United States, and we will have an easier time persuading them to do so without the need to expend our political or economic capital. Those who have expressed concerns in this respect seem to overlook the fact that the rules of high seas law set forth in the Law of the Sea Convention are copied from the 1958 High Seas Convention. Similarly, they overlook the fact that the rules of the Law of the Sea Convention regarding navigation and overflight and other high seas freedoms were expressly embraced by President Reagan in his 1983 statement on oceans policy, and constitute the bedrock of the legal foundation for our operations at sea around the world. The Administration has made it clear that it is able to and intends to carry out the proliferation security initiative in a manner consistent with high seas law as set forth in the Law of the Sea Convention, and that doing so is in our interests.
[MYTH] The Convention was drafted before – and without regard to – the war on terror and what the United States must do to wage it successfully.
- It is true that the Convention was drafted before the war on terror. However, the Convention does not prevent the United States from waging a successful war on terror.
- On the contrary, maximum maritime naval and air mobility that is currently assured by the Convention is essential for our military forces to operate effectively. The Convention provides the necessary stability and framework for our forces, weapons, and materiel to get to the fight without hindrance – and is the best guarantee that our forces will not be hindered in the future.
- Thus, the Convention supports our war on terrorism by providing important stability for navigational freedoms and overflight. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements. It is essential that key sea and air lanes remain open as an international legal right and not be contingent upon approval from nations along the routes. A stable legal regime for the world’s oceans will help guarantee global mobility for our Armed Forces.
U.S. ratification of UNCLOS would bolster homeland security efforts in two significant ways. First, it would provide a stable legal basis for U.S. freedom of navigation rights, preserving the right of the U.S. military to use the world’s oceans to meet national security requirements. Secondly, it would provide stronger legal basis for the U.S. to conduct necessary counter-terrorism interdiction operations and challenge excessive claims.
- Ratification of UNCLOS key to supporting U.S. efforts in current counterterrorism efforts
- U.S. ratification of UNCLOS will facilitate U.S. efforts in war on terrorism
- U.S. accession to UNCLOS would greatly enhance capacity of US coast guard to safeguard borders and ocean resources
- Navigational freedoms in UNCLOS critical in current global war on terrorism
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