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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.[1] 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.”[2]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.By Joseph Klein
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As in the days of Noah....
