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But even more importantly, the Treaty and its environmental provisions and the context they were negotiated in are relics of an earlier era -- an era where environmental damage was presumed to be accidental or incidental to economic activity. The current post-9/11 era, however, is defined by the non-conventional use of all tools available to a non-state or state-sponsored terrorist, or proxy warrior, to create a weapon of mass destruction. The very environment we cherish and this Committee seeks to protect and preserve is a likely battleground in this new era. The presumptions that underlie the environmental provisions of the Law of the Sea Treaty and other key elements of the document are woefully inadequate to meet the threats facing the United States in this very dangerous unconventional post-9/11 world.
We have ample evidence of terrorists targeting maritime commerce as a means of waging their worldwide attacks. A critical aspect of their planning is to cause as much environmental degradation as is possible. For terrorists with limited means or desire to engage in, or sustain, combat operations this is a lucrative area for them to attack the West. This method of fighting turns traditional Western war fighting doctrine – based upon limiting collateral damage as much as humanly possible -- on its head. Terrorists and their State Sponsors have high regard for the environment but, unfortunately, they see it as a “force multiplier” not as a treasure to be preserved. Recall the oil well fires in Kuwait set by Saddam’s retreating troops. Hideous environmental and health effects resulted from intentionally using the natural resources as a weapon. Recall the terrorist attack on the French oil tanker Limburg (October 10, 2002) carrying 158,000 tons of crude oil where the goal was to generate as large an oil spill as possible.
China, the European Union, or other member states could also attempt to amend UNCLOS in ways that could change the favorable extended continental shelf and deep seabed mining regimes, or give coastal states more control beyond their territorial seas and potentially obstruct the freedoms to navigate and to lay and maintain international cables. Without access to UNCLOS procedures, the United States loses the force of its objections and risks being a bystander as Member States effectively amend customary international law through UNCLOS amendments.205
In the years to come, will China continue to support a legal regime in the Arctic that excludes China from the vast majority of the Arctic’s seafloor resources? And if China finds the UNCLOS seafloor regime constricting and employs its considerable influence and financial strength to lobby for offshore investment or for a new approach, will other states without Arctic coastlines follow suit? Calls for an Arctic treaty are not new,206 and given China’s interests, such an effort would hardly be surprising.207 If such a movement were to arise, it is difficult to argue that the United States would be in a stronger position to resist change as an uncommitted outsider rather than a full-fledged member state.
The survey above suggests a variety of legal means through which the United States or a U.S.-licensed corporation might be challenged for operations on the seafloor outside the UNCLOS system. To date, such challenges are speculative; however, the variety of potential challengers and forums should lay bare the notion that the only thing corporations have to fear is fear itself.193
Corporate reluctance to proceed on the seafloor may also arise from the perception that a more immediate non-legal risk looms larger. The most threatening prospect for prospective seafloor operators today—other than a foreign navy or coast guard vessel arriving to forcibly eject them from an offshore site—may be the potential loss of reputation that would result from undertaking a “rogue” operation outside the UNCLOS regime.194 Companies with global operations and markets rely on political support from foreign governments, financial support from foreign investors, and market support from foreign consumers. Companies may be loath to jeopardize success abroad by taking action that might antagonize these pillars of a favorable business climate.195
A second potential means to compel compliance with UNCLOS regimes would be for a foreign state, corporation, or even an NGO to bring an action against the United States, or, perhaps more likely, a U.S.-licensed corporation in a foreign domestic jurisdiction. The enforcing party would be required to bring its action in a jurisdiction with domestic law incorporating UNCLOS obligations. Enforcement of UNCLOS in a foreign domestic court would depend on the relationship between treaties and the foreign nation’s domestic law.185 Nations fall into two categories in how they implement treaties into their domestic law. Some states convert treaties into domestic law automatically186 and in an UNCLOS member state taking such an approach, UNCLOS would be enforceable in a foreign domestic court without any further action required by the member state. In contrast, some nations require implementing legislation before a treaty is enforceable as domestic law.187 In such a nation, UNCLOS would either need to be made self-executing upon ratification, or be implemented through separate legislation.188
In either case, if a state is willing to incorporate UNCLOS provisions into its domestic law, it is foreseeable that the state might also insist that corporations conducting business within the state comply with UNCLOS. For example, state A might establish a rule that before corporation Z does business within A, Z must demonstrate that its international business is conducted consistent with UNCLOS. Further, if Z is already doing business within A and undertakes a new non-UNCLOS-compliant venture elsewhere, A might subject Z to penalties. Alternatively, A might allow private causes of action to be brought by third-party corporations or NGOs against Z as a way to compel UNCLOS compliance. Chevron, Exxon, and Coca-Cola are some of the U.S. corporations that have been forced to endure long and expensive litigation in a foreign domestic court for charges ranging from environmental pollution to human rights violations.189
Public international law governs the relationships between states and, on occasion, the relationships of states to international organizations. Nations commonly assume obligations to each other through treaties; however, a state may be bound by a norm of customary international law notwithstanding its failure to enter a treaty. Customary international law is created in a variety of ways, including by treaty provisions adopted and followed by sufficiently large numbers of states as a matter of legal obligation. Customary international legal obligations also give rise to an array of international remedies. Thus, the fact that the United States has not ratified UNCLOS does not necessarily mean the United States is free—as a matter of international law—to ignore particular UNCLOS legal norms or processes. If, in fact, the United States is under an obligation to comply with an UNCLOS provision that has also become customary international law, failure to comply could give rise to international liability and subject the United States to international legal remedies.
There is a strong case to be made that the United States is obligated under international law to comply with UNCLOS’ seafloor regime despite the fact that the United States has never ratified the convention. The most fundamental and compelling reason the United States is bound by UNCLOS’ regime for the extended continental shelf is because, quite simply, the United States says it is bound.170 Moreover, even though the United States has not ratified the convention, as a signatory to the revised deep seabed mining provisions, the United States has incurred an international legal obligation to not act contrary to the “object and purpose” of the treaty.171 In light of the prominent role given the deep seabed mining regime in the convention and its necessary and practically inseparable relationship to the extended continental shelf regime, the United States is arguably not permitted to act in any way that would undermine these central provisions.
Who might see fit to challenge the actions of a seafloor free rider like the United States? To begin, UNCLOS member states have obvious interests in the integrity of the continental shelf and seabed regimes in which they invest. Potentially interested states fall into at least three categories. First are states that may have an interest in conducting commercial activity of their own in an area claimed by the U.S. but not ratified through the UNCLOS process. Second are states that might have no objection, per se, to U.S. activity, but wish to ensure the United States pays its fair share under UNCLOS for the privilege of conducting commercial activity. Third are states that stand to benefit from the Article 82 “equitable sharing” payments and seek to ensure such payments are maximized.
In addition to UNCLOS member states, corporations with commercial interests in the seabed floor may have an interest in ensuring that actual and potential competitors do not obtain an unfair competitive advantage by operating outside the UNCLOS system. Although Article 82 royalties are assessed to states, it seems reasonable to assume that corporations may be assessed extended continental shelf fees by their licensing- states. Likewise, if operating in the area, corporations required to abide by rules and regulations established to govern the area would presumably demand that their competitors be bound by the same rules.
Similarly, the ISA, created by UNCLOS to “organize and control activities in the Area” and to distribute economic assistance and Article 82 royalty payments, would have an interest in preserving the integrity of the system it was created to oversee. Importantly, the ISA has been vested with international legal personality, which includes the power to bring suit to enforce its interests.168
Finally, enterprising NGOs might take a keen interest in whether a state and its licensees are profiting at the expense of developing and land-locked states protected by UNCLOS, or, whether states and licensees are complying with ISA regulations created to protect the marine environment in and around the common heritage of mankind. The most obvious targets for NGO disapproval and legal or political action would seem to be the states and corporations operating outside the economic assistance and environmental protection regimes created by UNCLOS.
As demonstrated in the hypothetical scenario at the beginning of this paper, China’s hold on rare earths may be a decisive factor in a future confrontation with the United States. The numerous weapons systems that rely on rare earths technology place the United States at a strategic disad- vantage with regards to China. If a prolonged, large-scale conflict between the two nations broke out over a Taiwan Strait or South China Sea dispute, the United States may find itself squeezed to obtain sufficient supplies of rare earths to manufacture replacement parts or systems to remain engaged in the fight. Much as the lack of secure access to oil was crippling to the Germans at the end of World War II, rare earths could play a similar, pivotal role in a future conflict with China. In the air-to-air arena alone, the requirement to replace expended stockpiles of advanced air-to-air missiles could become a factor very quickly based on the number of aircraft China would be capable of employing.
The demand for rare earths continues to rise. In 2010, the worldwide demand for rare earth oxides was 127,500 metric tons.45 China produced over 130,000 metric tons of rare earths in 2010 and 2011, eclipsing world demand.46 The next largest producer was India with a paltry 3,000 metric tons, followed by Brazil at 550 metric tons, and Malaysia at thirty metric tons.47 These production rates exemplify the disparity between China and its closest competitors in the industry.
By 2014, it is estimated that total demand for rare earth oxides will reach 177,200 metric tons.48 This increase equates to a 75 percent growth in demand for battery alloy production and a 57 percent growth in demand for permanent magnets.49 Capacity for meeting the increased demand is uncertain. Of the world’s estimated 110,000,000 metric tons of reserves, China controls half.50 The Commonwealth of Independent States is second, controlling approximately 19,000,000 metric tons, with the U.S. in third at 13,000,000 metric tons.51 Despite the large number of reserves deposited across the planet, very few countries possess the capacity to mine the ores and process them into rare earth oxides. However, with increasing demand on the horizon accompanied by increasing value, more nations as well as private corporations may be willing to enter the market
Furthermore, dual-use components made from rare earths play a vital role in U.S. national security through defense sector applications. Permanent magnets are incorporated in critical guidance and control mechanisms of U.S.-built weapons, enabling kinetic weapons to impact their target.33 Today’s advanced jet engines are coated with rare earth elements for increased thermal stress resistance.34 The performance requirements for the engines on the F-22A Raptor and F-35 Joint Strike Fighter (JSF) are extremely stringent based on the environment in which these aircraft routinely operate. Without the added thermal protection rare earths provide, engine performance may be degraded with catastrophic results.
Rare earths technology used in electronics also has numerous defense applications. The same technology used in manufacturing commercial Ni-MH batteries is also found in both electronic warfare systems and directed energy weapons.35 Examples of their use include smart jammers on advanced U.S. fighter aircraft, area denial weapons systems, and the electromagnetic railgun.36 All of these weapons require high efficiency battery technology to function properly. Additionally, computer drives manufactured with critical rare earths enable precision weapons systems to reach their targets, while laser technology depends on the amplification properties of rare earths for targeting.37 Without these critical components, accuracy would deteriorate, potentially resulting in increased collateral damage and weapons expenditure.
The Western Gap agreement has clear implications for the Arctic, where the United States shares a potential extended continental shelf with both Russia and Canada. UNCLOS opponents suggest that questions regarding international legal title to the U.S. potential extended continental shelf in the Arctic will be resolved conclusively when the United States enters bilateral agreements with Russian and Canada respectively.156 As simple and therefore attractive as this position may be, it begs several questions.
Under what legal authority would the Arctic neighbors have the right to divide and claim for themselves an area lying, at least in theory, beyond their respective national jurisdictions? Even assuming a legitimate legal basis to claim their extended continental shelves and delimit them bilaterally, what basis would the states have for desiring to and concluding their agreements outside the UNCLOS framework, including ignoring Article 82 royalty payments? Finally, even if Russia and Canada— both UNCLOS member states—choose to comply with UNCLOS on their respective sides of delimited shelves, might they object to the United States not doing so on its side, and, if so, would they pursue their objections? And how might the outer limits of the U.S. extended continental shelf in the Arctic be determined given the geographic differences from the Western Gap situation where there were only two geographically opposite states with no third state or area interests involved?
The simple answer is that only by acceding to the convention can the United States obtain its full continental shelf rights in the Arctic.