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In my personal opinion, the United States should join the Convention as a State Party. Legally, accession would enable the nation to enjoy the legal benefits that the Convention affords a party as a matter of conventional law, with more durable certainty. Politically, US accession would further demonstrate to other nations the US commitment to the rules-based and balanced approach of rights and responsibilities that the Convention reflects. More important than what I personally believe, the executive branch of the US Government supports and has long supported US accession to the Convention, in particular when discussing the ongoing situation in the waters of East Asia. In May of this year, President Obama acknowledged this challenge for the United States in his speech before the graduating cadets at the US Military Academy.19 He stated: “You see, American influence is always stronger when we lead by example ... We can’t try to resolve problems in the South China Sea when we have refused to make sure that the Law of the Sea Convention is rati ed by our United States Senate, despite the fact that our top military leaders say the treaty advances our national security.”
In short, the noticeable absence of the United States in the roll-call of mem- ber-states to the Law of the Sea Convention continues to handicap US efforts in the international community to promote the rules-based approach reflected in the Convention, particularly in the ways it can aid in resolving maritime-related disputes in the South China Sea. Yet, as a US citizen, I fully respect the US Senate’s constitutional role in the treaty-making process.
China and the United States have already agreed on communication protocols for unplanned encounters at sea. But most encounters between U.S. ISR vessels and aircraft and China’s warships and planes are not unplanned, unintentional, or even unexpected. While the new agreements may make the encounters safer, they will not make them any friendlier or less frequent.
What is needed is an agreement on a set of voluntary guidelines for military and intelligence-gathering activities in foreign EEZs and on definitions of permitted and prohibited conduct there. Such guidelines would provide indicators of friendly and unfriendly behavior and help parties avoid unnecessary incidents without banning any activities outright. But so far, the United States has rejected any and all such guidelines — voluntary or not — as unacceptable. There is now an opportunity for Washington to re-consider its position.
However, any such agreement should be ancillary to a grander bargain on the South China Sea. This bargain would in essence be a political and military stand-off with de-escalation. China would refrain from further occupation, construction, and “militarization” on its claimed features. It would also not undertake any provocative actions like occupying and building on Scarborough Shoal, harassing other claimants in the area, and declaring an air defense identification zone over the Spratlys. China would also agree to a Code of Conduct for activities in the South China Sea — although it may not be as robust or as binding as many would like. The United States, in turn, would decrease or cease altogether its provocative FONOPs against China there and its “close-in” ISR probes.
The United States claims that one of its main concerns is protection of “freedom of navigation.” But Washington purposely conflates freedom of commercial navigation with freedom to undertake military intelligence, surveillance, and reconnaissance (ISR) probes against China and others in the region. It then alleges that China’s interference with probes by these military vessels and aircraft in and over China’s exclusive economic zone (EEZ) violates the freedom of navigation. China argues that it is not challenging freedom of navigation itself but U.S. abuse of this right by its military. Beijing maintains that it has not and will not interfere with maritime trade.
Southeast Asian countries have not explicitly taken a position on this particular aspect of this complex issue, either individually or collectively. This is understandable because the debate over military freedom of navigation does not directly involve them and is essentially a bilateral U.S.-China dispute that can only be resolved by the two parties. Although the United States has asked several of its Asian allies to join FONOPs in the South China Sea, they have demurred. However, the resolution of this peculiar dispute would be warmly welcomed by Southeast Asia in general. What they fear most is that they will be used as pawns in an intensifying great power struggle.
The United States also claims it wants to maintain the rules-based order in the South China Sea. The UN Convention on the Law of the Sea (UNCLOS) is a key part of that rules-based order. The U.S. says that in addition to China, Cambodia, Malaysia, Indonesia, the Philippines, Thailand, and Vietnam are in violation of aspects of UNCLOS and it has challenged these violations militarily with FONOPs. Ironically, unlike most of Asia and indeed the world, the United States has not ratified UNCLOS and may even be violating some of its provisions. It is the U.S. itself that is undermining this Convention — and thereby the rules-based order.
National economies now rely on undersea connectivity for a growing portion of their overall output. Today, essentially every consumer or commercial product contains commodities and parts drawn from dozens of separate countries in a “manufacturing chain” of subcomponent builders, product assemblers, suppliers, wholesalers, and retailers. These disparate players are able to seamlessly integrate their efforts using the Internet, enabling greater specialization and economies of scale within each step of the manufacturing process. This, in turn, promotes economic growth in countries that no longer have to either build an entire product domestically with great inefficiency or import it at high cost.
Global manufacturing chains and financial services are made possible by transoceanic cables, and more cable is being laid each year to meet the growing demand for bandwidth. The Asia Pacific Gateway cable, installed in 2014, transmits 55 terabytes of data per second (Tbps) – the equivalent of 100 computer hard drives – between East Asian countries from Malaysia to South Korea, funded in part by Facebook. Similarly, Google helped fund the installation of the FASTER cable between the United States and Japan, which will carry 60 Tbps, and is bankrolling a new 64 Tbps submarine cable between the United States and Brazil. Both content companies are hoping the new networks will increase their user rolls and reduce costs in underserved areas such as Southeast Asia, Latin America, and Africa. Data transmission to these regions with older cables can cost up to 10 times more than to Europe or Japan.
Tapping today’s fiber-optic cables is theoretically possible, but it is easier to cut or damage them and significantly impact the cables’ users. And while the exact location of cables is not publicly available, improvements to “bottom survey” equipment and unmanned undersea vehicles are making finding cables easier and faster. In time-sensitive military or diplomatic operations, the loss of communications for a few minutes or hours can be catastrophic. With financial transactions, the loss of even fractions of a second can cost millions of dollars as high-speed trades miss their targets and other transactions fail to go through or are lost entirely. The dozens of cable outages that occur each year do not cause a complete loss of service, but they do slow data-transfer speeds as information is re-routed through fewer intact cables. Most of these cable breaks happen in relatively shallow water, when rough weather moves cables around until they break or fishing trawlers catch a cable in a net. Some outages, however, have more nefarious origins. In 2013, three divers with hand tools cut the main cable connecting Egypt with Europe, reducing Egypt’s Internet bandwidth by 60%.
Repairing a submarine cable at sea is difficult and time consuming. First the break has to be located using built-in monitoring systems that can indicate the cable segment in which the break is likely to have occurred. Cable repair ships then must go to that location and pull up the cable until they get to the damaged spot. A new section of cable can then be spliced in, which can take several days to complete.
Lastly, U.S. companies are not subject to the mandatory technology transfer requirements of Article 5 of Annex III of UNCLOS.213 As a result of Implementation Agreement, Section 5 of the treaty has been replaced by a set of general principles relating to technology transfers with a developing Member State.214 Furthermore, the treaty includes language to prevent technology transfers in the event it poses a national security risk to the U.S.215 Article 302 states: “[N]othing in this Convention shall be deemed to require a State Party, in the fulfillment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.”216
Only through the ratification of UNCLOS will the U.S. be able to truly provide American companies with the support and competitive edge that they have been craving for three decades.217 Without the risk of mandatory technology transfers, U.S. companies have nothing to lose and much to gain from the stability and predictability UNCLOS provides.218 To avoid losing American jobs to foreign locations like the U.K., the U.S. needs to accede to UNCLOS to help foster a deep seabed mining industry for U.S. companies and create jobs in this potentially lucrative and emerging industry.219
Contrary to the belief that UNCLOS “discourage[s] U.S. companies from participating in such [mining] activities,” there has been a call by U.S. companies and business leaders to ratify the treaty as soon as possible.201 At the 2012 Forum on the Law of the Sea held in Washington, Jennifer Warren, Vice President of Lockheed Martin, expressed the company’s high interest in deep seabed exploration and continued support of UNCLOS.202 Warren declared, “[r]ecent developments in deep seabed resources have really sharpened our interest in seeing the law of the Sea ratified as soon as possible.”203
Lockheed Martin currently benefits from UNCLOS and the ISA by acting through its British subsidiary.204 Despite this workaround, the company’s actions are symbolic of how important accession to the treaty is to the economic interests of the U.S.205 First, Lockheed’s workaround shows a lack of confidence in the current deep seabed mining regime provided by DSHMRA and the U.S.’s multilateral and bilateral agreements with a select group of nations.206 Second, it demonstrates the value U.S. companies place in security and predictability, both of which are provided by the ISA and UNCLOS.207 Lastly, it validates the significance of deep seabed resources.208 Warren’s statement summarized it best:
The importance of these resources is well understood internationally. Other countries are moving forward quickly and aggressively to access them. As the only U.S.-based claimant, our view is pretty straightforward. Business initiatives to exploit deep seabed mineral resources will only be able to secure the necessary financial investments if done pursuant to the existing international framework.209
In addition, John Ryan, Chief Legal Officer of Level 3 Communications,210 stated, “that any uncertainty inhibits economic growth and investment” when the protection of infrastructure in international waters is not guaranteed.211 While the rest of the world enjoys the benefits of UNCLOS and the ISA, the U.S. idly stands by, watching other nations like China and Russia claim prime locations for deep seabed mining activities.212
Since the mid 1990’s, the U.S. experienced a steady decline in its sphere of influence in the arena of ocean law and deep seabed resources.224 In 1982, the U.S. was one of the most prominent influences and contributors to UNCLOS.225 The U.S. once wielded enough influence and authority that the drafters of UNCLOS addressed the original misgivings of the Reagan administration through the Implementation Agreement.226 But when the U.S. chose a different path in 1998, it inadvertently surrendered its influential voice in the rulemaking affairs of the world’s oceans.227
Without its seats on the various arms of the ISA, any call for change by the U.S. relating to ocean affairs will fall on deaf ears.228 President Obama pointed out that “[I]t’s a lot harder to call on China to resolve its maritime disputes under the Law of the Sea Convention when the United States Senate has refused to ratify it.”229 Regardless of the U.S. Senate’s refusal to ratify the treaty, “top decision and policy makers [continue] to operate under the spirit of the law” provided by UNCLOS.230 The U.S. Senate must realize that despite its continued reservations of UNCLOS, members of political, security, and economic communities in the U.S. recognize the tremendous value in UNCLOS.231
Lockheed Martin has already sent American jobs outside the U.S. in order to obtain the benefits from ISA Member States.232 As 2018 approaches, the eyes of the world will turn its focus on Nautilus’ attempt to successfully operate the world’s first deep seabed mining operation.233 The success of the Solwara 1 Project will usher in a new era of opportunity for all, excluding non-ratifying States like the U.S.234 The probable response by other U.S. companies would be to follow Lockheed Martin’s footsteps, triggering the trend of utilizing foreign subsidiaries to operate deep seabed mining businesses, to the detriment of the United States.235
The fear that U.S. interests will be dominated by the interests of other Member States is overstated by critics of UNCLOS.196 U.S. accession will be a landmark event in UNCLOS’ history and will make waves throughout the international community.197 The reemergence of the U.S. will make a considerable impression and will only grow over time.198 Former U.S. Army General and the 18th Chairman of the Joint Chiefs of Staff, Martin Dempsey, stated the impact best when he said “We have the world’s largest and most capable Navy, the world’s largest economy and the largest Exclusive Economic Zone. We will become the leader within the Convention as soon as we enter it, and that’s never been more important” [emphasis added].199 To properly reassert itself as an influential player, relevant leader, and active participant in the affairs of the oceans, the U.S. must accede to UNCLOS.200