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At the same time, the Chinese are accelerating their own deep seabed mining efforts. They have increased government funding for seabed mining, and the government announced a $75 million national deep sea technology base in 2010. China is also expanding its engagement with the ISA, where it secured one of the four ISA exploration licenses issued in 2011. The Chinese can boast more than 20 years of sustained technical and political efforts to develop the deep seabed, funded by the government.
A close look at the map of claims in the Clarion Clipperton Zone (CCZ), a location in the Pacific Ocean that is rich with rare earths, shows active claims by China, Japan and Russia “planting their flags,” so to speak. Recently published reports have indicated that the Chinese are actively surveying other claim areas in the CCZ, including those of the U.S. Russia, Tonga and Nauru were also granted deep seabed mining licenses by the ISA last year. At last count, the ISA has 17 pending or completed applications for exploration – up from just eight in 2010.
Only ratification of the Law of the Sea Convention and engagement with the ISA will provide a sufficient mechanism to secure international recognition of U.S.-based claims and rights. Manufacturers and consumers will benefit from a more diverse and competitive market for rare earths, and deep seabed mining is an opportunity for the U.S. to quickly diversify its rare earth sources.
Today, a single country – China – holds a virtual monopoly on the mining and production of rare earth elements. China produces more than 90 percent of the world’s supply and also consumes roughly 60 percent of that supply. Brazil, India, Malaysia and Canada are the other sources of the remaining paltry supply of rare earths.
China recently imposed significant export restrictions on its rare earth production. In 2010, it announced it would cut exports of rare earth minerals by 40 percent by 2012. Just last week, Chinese officials released a white paper defending the country’s export control restrictions on rare earths. Earlier this year, the U.S. joined with Japan and the European Union to file complaints with the World Trade Organization (WTO) over China’s export policies on rare earths. Experts believe China may eventually consume 100 percent of the rare earth minerals that it produces, jeopardizing U.S. manufacturers’ access to these materials and, at the very least, significantly driving up costs for companies that use these minerals. These increased costs would impose significant and detrimental costs on the many millions of consumers who use these products and could have a profound negative impact on U.S. national security.
Third, accession will not only provide the United States with additional mechanisms through which it can strive to stop the erosion of freedoms critical to the U.S. Armed Forces, but it will also provide the United States another forum to advance U.S. interests. For example, we believe that as a party to the Law of the Sea Convention, the United States will have another avenue through which to achieve international consensus proscribing the maritime trafficking of weapons of mass destruction, their delivery systems, and related materials to and from states of concern and terrorists. To be sure, we will avail ourselves of every available option to halt the proliferation of weapons of mass destruction on the high seas.
To begin, once in force, the Administration will conduct biennial reviews of the treaty’s implementation, including the identification of any needed changes in the Convention’s implementation or in the Convention itself. Such reviews will help the United States assess whether the Convention continues to serve U.S. interests. As part of these reviews, the Administration will seek to identify any changes in the treaty or its implementation that may be required to adapt the treaty to changes in the global security situation. In addition, these biennial reviews will be coupled with a more comprehensive review after ten years. The results of these reviews will be shared with the Senate.
Reviews of this kind are not the only option for ensuring the Convention continues to serve U.S. interests. Another option that we considered is that of a sunset provision, that is, limiting the length of time that the United States is a party to the Convention, which has disadvantages as well as advantages. And, needless to say, the United States could, of course, withdraw from the Convention if U.S. interests are ever seriously threatened.
In any case, the goal is to make certain that the Convention continues to meet our national security requirements, protects our strategic flexibility, and advances broader U.S. interests in a world that is constantly changing.
The military activities exception is of obvious importance to the activities of the U.S. Armed Forces. As a result, we have examined this issue thoroughly to make certain that a tribunal cannot question whether U.S. activities are indeed “military” for purposes of that exception. Allow me to offer an example to illustrate the Administration’s concern. It is possible to imagine a scenario wherein another State Party calls upon a tribunal to decide whether or not our military surveys in that country’s EEZ or reconnaissance aircraft flying in the airspace above that country’s EEZ—both of which are military activities of paramount importance—are consistent with the Convention.
In this scenario, if a tribunal were permitted to interfere with such military activities, this would have a major impact on our military operations and U.S. national security.
In this light, the Administration closely examined the Convention, its negotiating history, and the practices of the tribunals constituted under the Convention. Based on this examination, the Administration believes that it is clear that whether an activity is “military” is for each State Party to determine for itself. Indeed, having the ability to determine what is a “military activity” involves vital national security interests that are critical to our ability to defend the Nation, protect our forces overseas, safeguard our interests abroad, and assist our friends and allies in times of need.
The Administration thus recommends that the United States submit a declaration electing to exclude all three of these categories of disputes from binding dispute settlement. With respect to the particular category of disputes concerning military activities, the Administration further recommends that the U.S. declaration make clear that its consent to accession to the Convention is conditioned upon the understanding that each Party has the exclusive right to determine which of its activities are “military activities” and that such determinations are not subject to review. We will provide the Committee with language on this point.
Although generally the United States exercises jurisdiction in accordance with UNCLOS provisions, the Oil Pollution Act of 1990 (OPA) is one example of the U.S. exercising extraterritorial jurisdiction and exceeding the standards in UNCLOS.6 OPA requires all ships operating in U.S. waters to be constructed with a double-hulled design.7 Additionally foreign vessels lightering in the U.S. EEZ, including “those not intending to enter United States waters,” must maintain certificates of financial responsibility if some of the oil is destined for the United States. OPA also imposes a series of additional requirements for vessels transferring oil or hazardous materials in the marine environment. Passed in response to the devastating Exxon Valdez oil spill off the coast of Prince William Sound in Alaska, OPA is a clear example of the need to protect the United States’ ability to act in the absence of adequately protective international standards.
The Senate must therefore ensure in its advice and consent that the provisions in UNCLOS do not overly limit the current authority of the United States to regulate pollution from vessels by clarifying the phrase “generally accepted international standards.” The Senate should also specify that the U.S. believes it is free to act where necessary to protect its waters where the regulated activity is not addressed by a specific international rule or standard to prevent, reduce or control its pollution.
The Committee has heard from many witnesses that our failure to ratify this global treaty has hurt us to some extent economically, diplomatically and environmentally. These witnesses have rightly noted that our failure to ratify the Convention has hurt not only our international credibility, but also our ability to effect future changes in the terms and agreements upon which international law is based. The United States is a world leader in marine conservation, and our accession to UNCLOS will greatly help us advance international standards and practices.
While the United States is a world superpower, we must fully engage our fellow nations and secure the cooperation of the international community if we are to be successful in protecting our oceans and their resources. For example, currently the United States adheres to the fisheries conservation measures in the Law of the Sea and subsequent Straddling Stocks Agreement, and we treat them as customary international law. However, unless we become a signatory to the treaty, we are without recourse to enforce this Agreement’s terms with regard to other states which do not. We are also unable to fully represent U.S. interests in negotiating future changes or terms to both of these agreements. Both the Pew and the Federal Oceans Commission have recently recommended accession for this purpose: to secure a positive environmental framework for U.S. ocean management. In sum, it is impossible to be a world leader relative to the health of the oceans without full participation in the international rule of law that applies to them.
At present for the United States, the operative international treaty for international cables is the 1884 International Convention for Protection of Submarine Cables. This venerable treaty was designed for old international telegraph cables. While most of its features are included in UNCLOS, UNCLOS provides real improvements required by the steady progress made in international communications in the past 122 years since the 1884 treaty entered into force. UNLCOS is essential for modern telecom business.
For example, under the 1884 treaty, nations are required to provide criminal and civil sanctions for negligent or intentional actions which cause injury to a submarine telegraph cable. Unfortunately, under this treaty, the cable owner must wait until the damage is done before sanctions are triggered. Under UNCLOS, conduct which is likely to result in injury can also be sanctioned. Under UNCLOS, a cable owner has a remedy to prevent the injury to critical infrastructure in the first place. When one considers the average $1M plus cost of a cable repair and the potential disruption a cable break can cause to vital economic and strategic interests, it is easy to see why cable owners want UNCLOS now.
The 1884 treaty is limited to telegraph cables. UNCLOS provides and expands the protections accorded telegraph cables to all international cables regardless of use.
What you may not realize is that 70% of all of the country's international telecom traffic, which includes data transfer and video, is carried on these cables. If you eliminate Canada, 90% of the country's international traffic is carried on these cables. The disproportionate importance of these cables to the nation's communication infrastructure can be seen by the fact that if all of the cables were suddenly cut, using every single communications satellite in the sky, only 7% of the United States traffic could be restored. This underscores the incredible capacity of modern fiber optic submarine cables. By any standard, they constitute critical infrastructure to the United States, and indeed the world.
This critical infrastructure, by its very nature, depends upon international cooperation and law. The promise of continued advances in international communications hinges on an international standard providing a compass whereby nations and private companies may steer a course which efficiently allows international communications networks to be seamlessly planned, built, and operated.
UNCLOS provides this modern legal compass. Simply stated, without UNCLOS, US telecom companies are hurt in the planning, development, maintenance, and protection of the world's undersea cable networks. UNCLOS is the key to the world's international telecommunication system; it unlocks the door for the fullest participation and leadership possible by US telecom companies.
Problem #4: Unnecessary Risks to National Security. Proponents of the Convention argue that it promotes U.S. security by codifying a variety of rights to navigate the world’s oceans that are valued by the Navy. While the Navy, quite appropriately, seeks the codification of these rights, it should be pointed out that a significant portion of these rights are already established by a series of four 1958 “Geneva Conventions on the Law of the Sea” and customary international practice.
On the other hand, the risks to national security posed by the Convention are often understated. For example, Deputy Assistant Secretary of Defense for Negotiations Policy Mark T. Esper, who testified in favor of the Convention, told the Senate Foreign Relations Committee in an October 21, 2003, hearing that the mandatory dispute resolution mechanism could be used by states unsympathetic to the U.S. to curtail its military operations even though such operations are supposed to be exempt from the mechanism. This is because it is unclear by the terms of the treaty what activities will be defined as military. While the Bush Administration believes that it will be up to each State Party to determine for itself what activities are military, it is uncertain enough about the issue that it is recommending the U.S. submit a declaration reserving its right to determine which activities are military. Unfortunately, it is not at all certain that a declaration will suffice to protect vital U.S. national security interests. Other states may choose to accept or ignore the declaration, or a future administration may accept the jurisdiction of a tribunal and be surprised if precedent-setting decisions go against U.S. interests. While in the future the Navy may recommend that the U.S. reject a claim of jurisdiction for a tribunal, civilian authorities both inside and outside the Department of Defense may overrule the Navy. Amending the text of the treaty may be the only certain way to protect U.S. interests against overreaching by other states regarding the mandatory dispute resolution mechanism. This is my view, in part, because I am not aware of a precedent for such a mandatory dispute settlement mechanism that could extend to such sensitive areas.