The United Nations Convention on the Law of the Sea (UNCLOS) is poised for ratification by the United States Senate. The Senate Foreign Relations Committee voted 17-4 last Thursday to send it to the Senate floor for final approval. President Bush supports it. Unless thirty-four votes can be mustered to stop this runaway train, we are headed for a train wreck in our fight against global terrorism.
The 9/11 Commission stated that “al Qaeda has tried to acquire or make weapons of mass destruction for at least ten years. There is no doubt the United States would be a prime target. Preventing the proliferation of these weapons warrants a maximum effort ….”
UNCLOS works at cross-purposes with the 9/11 Commission’s objective.
As a coastal nation, the United States is particularly vulnerable to infiltration of nuclear and other similarly lethal materials that may be hidden in a ship’s cargo. Documents in Arabic seized from one of Osama bin Laden’s senior aides even before 9/11 evidenced plans by al Qaeda to use cargo shipping containers packed with sesame seeds to smuggle highly radioactive material to the United States. This is far from an isolated example of al Qaeda plans to exploit the seas for preparing and executing their attacks.
A congressional study described our vulnerability as follows:
“The United States has many thousands of miles of land and water borders, as well as several hundred sea, land, and air ports of entry — 317 by one count — giving terrorists many pathways to smuggle a nuclear bomb into this nation. There are many types of borders — oceans (tropical to temperate to Arctic), land and river borders with Mexico and Canada, and the GreatLakes. Each poses its own set of opportunities for smugglers.
Terrorists could avoid the risks attendant to smuggling…if they could place a weapon on board an airplane or ship bound for the United States and detonate it before it could be inspected, such as in the air above a city or as it entered a seaport.”
Terrorists can also use ships laden with explosives as floating time-bombs to be set off in key shipping lanes around the world such as the Strait of Hormuz, the Panama Canal, the Suez Canal and the Bosporus and Turkish Straits. Blockage of these vital chokepoints would cause incalculable devastation to world trade and precipitate a world-wide economic depression.
In order to interdict these dangerous materials on the high seas or in coastal maritime zones before they reach their targeted destination, U.S. warships must be able to stop, board, search or even seize foreign vessels wherever they are found if there is reasonable suspicion that they are carrying such materials.
UNCLOS only allows interdiction of another nation’s vessel on the high seas in very limited circumstances, including to combat piracy, the slave trade, unauthorized broadcasting, and drug trafficking. The permitted circumstances do not include suspicion of participation in WMD-related trade or transport of nuclear, chemical or biological weapons materials. No other international treaty provides such authority either, including the Non- Proliferation Treaty, the Chemical Weapons Convention, the Biological Weapons Convention, or any of the Nuclear Weapon-Free Zones conventions.
Moreover, under the UN Law of the Sea Convention, a flag bearing foreign warship carrying nuclear or other hazardous substances could not be denied entry into our territorial waters in most cases. The right of innocent passage embodied in the Law of the Sea Convention would limit our jurisdiction over foreign vessels passing through our territorial waters. Article 23 of the treaty allows "ships carrying nuclear or other inherently dangerous or noxious substances" the right of innocent passage through territorial seas as long as they "carry documents and observe special precautionary measures established for such ships by international agreements." Thus, if we were to join the Convention, we would be in violation if we interdict a North Korean ship carrying nuclear materials to Iran that carries some sort of documentation. This is particularly ironic, considering that neither Iran nor North Korea has formally ratified the Convention although Iran is a signatory and claims to adhere to its core principles.
Some advocates of the treaty claim that interdiction would be justified under a principle of anticipatory self-defense against terrorism, as part of the broader Proliferation Security Initiative that enabled the United States to interdict nuclear materials bounds for Libya several years ago. The problem with that argument is two-fold.
First, without the consent of the country whose ship is to be searched, this is akin to the notion of pre-emptive attacks that have been roundly criticized as contrary to international law. The anti-American bloc of moral relativists who dominate the United Nations and other international bodies will argue that there is a double standard inherent in allowing the United States and its allies to roam the seas freely with nuclear weapons while denying the same right to any nation, irrespective of its record of terrorist sponsorship and aggressive behavior toward its neighbors. Iran will simply repeat the claim that it is making about its nuclear enrichment program – that the transported nuclear materials are solely for “peaceful” purposes. And the left – including all of the Democratic presidential candidates – will believe them.
Secondly, the United Nations has not even been able to reach consensus on how to define terrorism, much less what tools are permitted to combat it under international law. Islamists in particular argue that terrorism should exclude resistance against foreign occupation. For starters, that would exclude any attacks on Israeli civilians, including suicide bombings, from the definition of terrorism since such attacks are seen as resistance against Israeli occupation of Palestinian lands. This justification for mass murder is then extended by Islamic fanatics to cover attacks on Americans and other Westerners anywhere in the world, since the fanatics hold us collectively responsible for all the ills and humiliation that have befallen the so-called “Muslim Nation”:
“It is about time the US realise they are fighting a losing battle against Islam, for Islam is the True religion of God. A nation that takes the True religion and its Shari’ah as a way of life can never be defeated. The Muslim nation may lose a battle or two but they can never lose the war.
Allah (swt) says: “And these towns We destroyed when they did wrong. And We appointed a fixed time for their destruction.” [Surah AlKahf, 18: Verse 59]”
If such a perverted ideology prevents the United Nations from even being able to define terrorism intelligently, how can we possibly accept the limitations on fighting terrorism that its Law of the Sea Convention would impose on us? The international tribunal established to resolve maritime disputes under the Convention would be applying a treaty that does not recognize the threat of transport by terrorists and their sponsoring countries of nuclear and other hazardous materials as a legitimate ground for a non-consensual search of a foreign vessel - even in our own territorial waters. And there is no recourse for appeal from the decisions of the tribunal.
John D. Negroponte, deputy secretary of state, and Gordon England, deputy secretary of defense, have been spearheading the Bush Administration’s support for the UN Convention before the Senate Foreign Relations Committee. They have testified that UNCLOS will secure the rights we need for U.S. military ships and the commercial ships that support our forces to meet national security requirements. In this regard, they argued that the UN Convention will enhance, rather than undermine, our ability to wage the war on terror by providing the necessary stability and framework for our forces, weapons, and materiel to get to the fight without hindrance. The military brass is backing this position and apparently takes comfort in the assumption that no U.S. military activities, including those of the U.S. Navy, would be subject to any form of dispute resolution before the international tribunal if we do not want them to be. Since any party to UNCLOS can exclude from dispute settlement those disputes that concern "military activities", it is argued that the United States will have the exclusive right to determine what constitutes a military activity.
These pro-Convention arguments are highly misleading and rest on false assumptions. The Convention does not define what constitutes a “military activity.” It is entirely in the eyes of the beholder. There is nothing in the Convention that would give any member state the unilateral right to determine whether its own activities are classifiable as exempt military activities. The international tribunal can be expected to define military activities in terms of whether they are engaged in during the course of actual combat at sea. Under this approach, the United States would not be able to opt out of the Convention’s restrictions on most anti-terrorist maritime activities in which it is engaged today. For example, Article 19 of the Law of the Sea Convention proscribes from coastal states' territorial waters such activities as intelligence collection. Even if the U.S. were to opt out of submitting to the Convention’s tribunal regarding its clearly defined military activities, there will still be severe restrictions on its intelligence gathering capabilities.
The Proliferation Security Initiative will also certainly be challenged. China and Russia have already claimed that it is illegal under the Convention. And if the United States were to capture a terrorist suspect hiding on a foreign vessel stopped on the high seas, the ACLU and Amnesty International crowd will argue that the Convention reinforces the view that international human rights law prohibits a state from detaining terrorism suspects not captured in a theater of combat. Not only will we be required to release the ship. We will also have to release the terrorist suspect.
Moreover, the arguments in favor of the Law of the Sea Convention advanced by Messrs. Negroponte and England, as well as the military brass, ignore political reality. Congress is controlled by a party that is captive to Moveon.org, Code Pink, and other radical left, anti-military organizations. Any treaty that provides the tools for further restricting the assertion of American military power in the global war against terrorism will be embraced by the left. All it will take is a Democratic win of the presidency in 2008 and we will see a complete capitulation to the jurisdiction of the UNCLOS international tribunal with respect to any maritime disputes involving U.S. military or intelligence activities. International lawyers, not our military officers and intelligence agents, will decide how we can protect our two coasts from terrorist infiltration. Any Americans boarding a vessel suspected of terrorist aims could find themselves being judged by an international tribunal consisting of largely unsympathetic jurists. Trial before the International Criminal Court could follow – particularly if, as expected, a Democratic President and Congress decide to join the treaty under which the International Criminal Court was established.
In short, whatever marginal benefits there may be to joining the UN Law of the Sea Convention, such as its guidelines on the management of fisheries and freedom of navigation, our adversaries will use the Convention’s rules and procedures to cover their acquisition and transport of nuclear and other catastrophic weapons materials while binding us up in the double-talk of international legalisms. Iran can be expected to do just that in challenging any actions by the United States and its allies to carry out interdictions under the Proliferation Security Initiative. And the terrorists, who mock all international laws when applied to them, will have a field day seeing us entangled in such laws.
If the UN Law of the Sea Convention is fundamentally overhauled to address these security concerns, it may be salvageable. Right now, however, it is a complete wreck that deserves to be dropped to the bottom of the sea.
 A Time Bomb for Global Trade: Maritime-related Terrorism in an Age of Weapons of Mass Destruction by Michael Richardson (February 25, 2004).
 CRS Report for Congress, Nuclear Terrorism: A Brief Review of Threats and Responses (September 22, 2004).
The Muslim Nation does not Concede to Defeat, Missionislam.com.