The Time is Now: The United States Needs to Accede to the United Nations Convention on the Law of the Sea to Exert Influence over the Competing Claims in the South China Sea
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First, without the protection now guaranteed by UNCLOS, U.S. companies are not likely to invest in deep seabed mining.109Almost Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty — Stewart M. Patrick. — The Atlantic — Jun 10, 2012 [ More ] At a hearing before the Senate Foreign Relations Committee, Jay Timmons, President and CEO of the National Association of Manufacturers, spoke on manufacturers' behalf and expressed the hesitancy to invest: "[t]he development of deep seabed claims is incredibly expensive. Companies in the U.S. are reluctant to invest heavily in deep seabed mining because of the risk that their activities would not withstand a legal challenge since the U.S. is not a party to the Convention."110"Statement of Jay Timmons: The Law of the Sea Convention: Perspectives from Business and Industry (June 28, 2012) ." Testimony before the Senate Foreign Relations Committee, June 28, 2012. [ More (5 quotes) ] For instance, the Pacific Ocean contains a large supply of nodules, rock-like substances that contain minerals such as nickel, copper, and cobalt.111Mining the Seafloor for Rare-Earth Minerals — William J. Broad. — New York Times — Nov 09, 2010 [ More ] There is currently no cost-effective way to remove these nodules from the ocean floor.112Mining the Seafloor for Rare-Earth Minerals — William J. Broad. — New York Times — Nov 09, 2010 [ More ] It is possible that developing a procedure to extract the metal from the nodules will be the most expensive part of the process."113Mining the Seafloor for Rare-Earth Minerals — William J. Broad. — New York Times — Nov 09, 2010 [ More ] Further, methane hydrates114 are another potentially enormous alternative energy source found in the ocean with extraction technology in its infancy.115 Unless the United States accedes to UNCLOS, U.S. companies will be less likely to invest in deep seabed mining of the nodules and exploitation of methane hydrates, leaving untouched great resources that would add much revenue to the U.S. Treasury.
The United States needs to invest in off-shore drilling for its national defense: "The U.S. requires an incredible number of military products for which rare earth minerals [which are found in abundance in the seabed] are essential.”116The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] In the past, military products were manufactured in the United States.117The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] Today, a "tremendous number of our bullets are manufactured in China ... meaning that if we find ourselves cross-wise with the Chinese, they can cut off our supply of bullets.118The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] It is a matter of national security that the United States be self-reliant on ammunition for its weapons."119The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ] The United States needs to accede to UNCLOS to give companies the security to invest in offshore drilling, in order to be able to manufacture bullets independently from its own supply of rare minerals.120The Case for Ratification of the Law of the Sea Treaty — Andrew Langer. — Real Clear Politics — Nov 28, 2012 [ More ]
For example, the Arctic is a large area where multiple countries currently assert their jurisdiction. Countries have begun their expansion due to the effects of global warming.132 Because of rising ocean temperatures, ice caps have melted, causing areas that were once covered by ice to be accessible by ships.133 Countries have begun experimenting with new shipping routes and are actively searching for natural resources in the region.134 The search for natural resources has only just begun, as the resources are now accessible in the water.135 The ice caps that once served as a difficult obstacle to bypass are gradually disappearing, making access to the region much easier.
In particular, the United States has a large extended continental shelf in the Arctic, full of these untapped resources.136 The United States would be in a better position to argue disputes, such as one with Canada concerning the emerging neutral territory, if it acceded to UNCLOS.137 As Secretary Panetta noted:
Joining the Convention would maximize international recognition and acceptance of our substantial extended continental shelf claims in the Arctic. As we are the only Arctic nation that is not a party to the Convention, we are at a serious disadvantage in this respect. Accession would also secure our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.138
Acceding to UNCLOS would help the United States solidify security over its jurisdiction in the Arctic, by providing both new trade routes and opportunities for deep seabed mining and the legal framework to support these activities.
Currently, the State Department's suggestion to the competing claims in the South China Sea is for all of the nations to follow UNCLOS.230 It is hypocritical for the United States to encourage another country to follow UNCLOS without actually acceding to it herself.
Further, China is less likely to listen to the United States from a "position of weakness."231 According to one commentator, conversations between the United States and China regarding foreign military activity in China's EEZ currently look like this:
Chinese official: Your navy ships have no right to be in our exclusive economic zone without our permission.
American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides other states have freedom of navigation in exclusive economic zones.
Chinese official: You are not a party to convention, so it doesn't matter what it says-you have no standing to make that argument.232
If the United States acceded to UNCLOS, then China's response could no longer be, "You are not a party to the convention." Admiral Locklear, the U.S. Navy Commander in the U.S. Pacific Command, has mentioned that in the South China Sea, where "competing claims and counter claims in the maritime domain are becoming more prominent . .. the effectiveness of the U.S. message is somewhat less credible than it might otherwise be, due to the fact that we are not a party to the convention."233 The United States would finally have standing to make the argument that China needs to follow UNCLOS.
The South China Sea is vital to the United States and world policy. Half of the world's gas, oil, and shipping tonnage navigate this area.143 Approximately $5.3 trillion of global trade passes via the South China Sea each year.144 Likewise, the area is particularly critical to U.S. trade;145 $1.2 trillion of the $5.3 trillion total global trade passes through U.S. ports.146 In addition, while the fish stocks in the South China Sea are both depleted and poorly controlled, there is still a growing demand due to local population increases.147 The South China Sea holds almost one-tenth of the world's fisheries used as food for people.148 Finally, the potential for natural resources is equally great. Recent reports found that the South China Sea holds about 1.6 billion barrels of recoverable petroleum, while some Chinese studies increase this estimate by a power of ten.149 Further, it is estimated that a large amount of methane hydrates are in the South China Sea-"initial median estimates [of methane hydrates] place . . . China's [reserves] at 5 trillion cubic meters.”150 Control of the South China Sea is thus very important.
Further, the United States needs to accede to UNCLOS to exert credible influence over the competing territorial claims in the South China Sea. Although the United States has not taken a position on the competing claims in the region, it has urged the parties to follow UNCLOS.239 Admiral Locklear comments that by becoming a party of UNCLOS, "we place ourselves in a much stronger position to demand adherence by others to the rules contained in the Convention."240 Without being a party of UNCLOS, the United States's recommendations to China carry little weight.
The United States should be very concerned about this situation. There are conflicting territorial claims in the South China Sea, such as the Spratley Islands. Should the Philippines and China end up in an armed conflict over these islands, the Philippines will look to the 1951 U.S.-Philippines Mutual Defense Treaty, and the United States could likely be pulled into war it does not want or need. The United States needs to accede to the treaty to empower her to influence the situation as it now exists.
Additionally, the United States needs to accede to UNCLOS because of the importance of the South China Sea trade routes. China believes that UNCLOS gives it the right to demand notification when foreign countries enter its EEZ.241 The United States does not believe that it has to notify China when the U.S. military enters Chinese waters. These U.S. reconnaissance missions in the South China Sea are crucial to its military security procedures, if for no other reason than the volume of U.S. trade passing through the area. This disagreement has arisen out of differing readings of UNCLOS. Until the United States accedes to UNCLOS, it has no doctrinal authority to argue with China, because the United States has not agreed to be bound by UNCLOS. As a signatory, the United States would have the ability to take up this issue with the committee to determine what authority each country has to regulate foreign military in its EEZ.