Evidence: Recently Added
The differing views held by the United States and China over maritime boundaries has great significance for U.S. national security. The military forces of the United States provide a critical deterrent against foreign aggression that might affect the global flow of commerce. In order for U.S. forces to be a credible deterrent they must have access. In its analysis of the national security implications inherent in the UNCLOS convention, the U.S. Department of Defense emphatically stated that, “Assurance that key sea and air lines of communication will remain open as a matter of international legal right and will not become contingent upon approval by coastal or island nations is an essential requirement for implementing our national security strategy.”49 China’s policies and actions place this freedom at risk. If they are allowed to prevail in their claims, the negative operational consequences for USPACOM are tremendous.
If China is allowed to prevail in its claims of sovereign jurisdiction over enormous ocean areas, this would seriously degrade the ability of U.S. forces to conduct peacetime operations in a critical region. Not only would the U.S. Air Force and Navy be unable to operate in much of the south-east Asian littoral, but forces responding to contingencies in other regions could be forced to take alternate routes that would significantly restrict the ability of the U.S. to quickly respond to a crisis.50
Second, without U.S. presence, important partners such as Singapore and the Philippines would no longer benefit from the stabilizing influence that the presence of U.S. forces provides. Instead, as the emerging naval power in the region, Chinese ships would be free to exert their influence unchecked.
Lastly, any freedom of navigation operations conducted by U.S. forces take on a new level of risk as the mere presence of U.S. forces in China’s claimed EEZ could result in hostilities. U.S. forces and Allies, like Australia, routinely conduct freedom of navigation (FON) operations in order to oppose illegitimate maritime claims. These operations are not intended to be antagonistic. Rather, they are intended to serve as just one element in the discourse between nations.51 However, with China’s extreme sensitivity to sovereignty, most U.S. FON operations will almost certainly be viewed as blatantly provocative.52
Finally, the United States should not ratify the UNCLOS Convention until the ambiguities regarding warship innocent passage rights and military operations in the EEZ are resolved. This is commonly referred to as the “military activities” exemption.59 President Reagan’s Executive Order made it U.S. policy to abide by the great majority of the Treaty, especially those sections germane to ship and aircraft navigation. The U.S. is therefore already in functional compliance. A case could even be made that the international acceptance of the Treaty -- even by those nations who have not ratified it -- has given the Treaty the force of international law.60
It is apparent that China does not intend to abide by the letter of the law -- at least not when it does not suit its purposes. Therefore, the U.S. must level the playing field in order to work through the issues. Ratifying the UNCLOS Treaty may actually take away the very flexibility that PACOM needs in dealing with China. Were the U.S. to ratify the Treaty tomorrow, the problems discussed in this paper would persist, but PACOM would have fewer “legal” options available under international law in order to respond to China’s excessive claims and provocations.
Critics suggest accession to UNCLOS is not required in order for the United States to claim an ECS, since the 1958 Continental Shelf Convention and the 1945 Truman Proclamation already support a unilateral U.S. claim. Although that may be true, the metric for determining the outer extent of the ECS is more generous in UNCLOS than in the 1958 Convention or the Truman Proclamation, both of which rely on an “exploitability criterion” to identify the outer limit of the ECS.30 More importantly, the U.S. oil and gas industry believes that unilaterally claiming an ECS outside UNCLOS may be challenged by other nations in courts throughout the world, and has therefore repeatedly argued that legal certainty/security of tenure to explore and exploit the resources of the ECS can be obtained only through UNCLOS.31 The bottom line is that U.S. industry will not invest in offshore oil and gas production in the ECS unless the United States is a party to UNCLOS.32
Payments are to be distributed by the ISBA to States Parties of UNCLOS in accordance with Article 82(4) on the basis of equitable criteria that take into account economic development factors. Of note, this distribution is distinct from the distribution of revenues generated from deep seabed mining operations under Part XI of the Convention. As a State Party to UNCLOS, the United States would have a permanent seat in the ISBA to ensure both kinds of distributions are made in ways acceptable to the United States—Section 3(15) of the Annex to the IA guarantees the United States a seat on the ISBA Council in perpetuity.28 Any ISBA decision regarding revenue sharing must be approved by the Council.29 Additionally, if distributions are made to a country that is already receiving U.S. foreign aid, the United States could offset aid to that country by the amount of distributions paid by the ISBA, in essence eliminating any increase financial burden to the American taxpayers.
Granted, as UNCLOS critics are quick to point out, access to the ECS under UNCLOS is contingent upon payment of royalties to the Interna- tional Seabed Authority (ISBA) for oil and gas development beyond 200 nautical miles (nm).26 However, the royalty framework is relatively insignifi- cant compared to the fee-sharing arrangements for overseas oil and gas development and the enormous economic benefits anticipated from off- shore resource development. Revenue sharing does not begin until the 6th year of production of a particular well or site, starts at 1% of the value of production and increases 1% per year. By the 12th year and remaining years thereafter, the royalty is 7% of the value of production, paid either in kind or in dollars.27 During the 1970s, these revenue sharing provisions were negotiated in consultation with the U.S. oil and gas industry.
According to a 2008 assessment by the U.S. Geological Survey (USGS), “the total mean undiscovered conventional oil and gas resources in the Arctic are estimated to be approximately 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids.”17 The overwhelming majority of these resources—84 percent—is expected to occur in offshore areas. Over 70 percent “of the mean undiscovered oil resources is estimated to occur in five provinces: Arctic Alaska, Amerasia Basin, East Greenland Rift Basins, East Barents Basins, and West Green- land-East Canada.”18 Similarly, over 70 percent “of the undiscovered natural gas is estimated to occur in three provinces: the West Siberian Basin, the East Barents Basins, and Arctic Alaska.”19 Arctic Alaska, the Amerasia Ba- sin, and the North Chukchi-Wrangel Foreland Basin provinces, portions of which could be claimed by the United States, account for over 40 million barrels of oil, 284 billion cubic feet of natural gas, 6.5 million barrels of natural gas liquids and 94 million barrels of oil and oil-equivalent natural gas.20 The value of these resources is estimated to be in the trillions of dollars.21
On October 7, 1994, President Clinton submitted UNCLOS and the IA to the Senate for advice and consent to accession and ratification, re- spectively. Despite widespread bi-partisan support, the concurrence of all the Federal agencies and departments with ocean interests, and support from the U.S. maritime industries (oil and gas, shipping, telecommunications, marine science, fishing) and environmental groups, the Convention and its Implementing Agreement have languished in the Senate for the past 20 years.
The United States has basic and enduring national interests in the oceans. These diverse interests—security, economic, scientific, dispute settlement, environmental, and leadership—are best protected through a comprehensive, widely accepted international agreement that governs the varying (and sometimes competing) uses of the sea. Although the United States has lived outside the Convention for 30 years, climate change in the Arctic provides the current Administration with a new and urgent incentive to re-engage the Senate and urge that body to provide its advice and consent to U.S. accession to the treaty at the earliest opportunity. As a nation with both coastal and maritime interests, the United States would benefit immensely from becoming a party to UNCLOS—accession will restore U.S. oceans leadership, protect U.S. ocean interests and enhance U.S. foreign policy objectives, not only in the Arctic, but globally.
Indeed, at a summit on Deep-Sea Mining in London two months ago Mark Brown, Minister of Minerals and Natural Resources of the Cook Islands, announced that the Cook Islands is embracing deep-sea mining as a pathway to multiply the country’s gross domestic product by up to 100 fold, as they assessed that the Cook Islands' 2 million Km2 exclusive economic zone contains 10 billion tons of manganese nodules, which contain manganese, nickel, copper, cobalt and rare earth minerals used in electronics. Negotiations are under way between the Cook Islands and companies in the UK, China, Korea, Japan and Norway, towards granting the first tenders within a year.
These facts suggest that we may soon face and underwater gold rush, but in most citizen’s minds deep-sea mining is still something for sci-fic movies. Much to the contrary, the technology for deep-sea mining is not something of the future but it is largely existing. A deep-sea mining operation consists of a mining support platform or vessel; a launch and recovery system; a crawler with a mining head, centrifugal pump and vertical transport system; and electrical, control, instrumentation and visualization systems. Companies such as Lockheed Martin, Soil Machine Dynamics, IHC Mining and Bauer or Nautilus Minerals are developing vehicles for deep-sea mining, pledging they are in the position to readily develop techniques to operate down to 5,000 metre depth. Indeed, the submarine vehicles required are already in existence and their operations are described in compelling animations.
This brings us to the keystone in the arch of opposition. The treaty is officially titled the United Nations Convention on the Law of the Sea. And anything that bears the imprimatur of the United Nations is immediately and unconditionally dead on arrival in a certain tranche of senatorial offices. Sen. Jim DeMint (R-SC), for example, has suggested the United Nations is “ineffective, they’ve been wasteful, there’s corruption, and there is deep concern that there is a lot of anti-American sentiment.”
Here’s the thing: The United Nations has virtually no role in management, implementation, or execution of this treaty. It remains in the convention’s title only because the treaty was initially negotiated at the United Nations.
The treaty itself does not establish U.N. oversight of any aspect of its implementation. It creates separate management bodies, like the International Seabed Authority, which work to regulate multinational operations in international waters without a direct link to the organization that has attracted so much vitriol from the protectionist wing of the conservative movement.
Apparently, conservative conspiracy theorists’ fears about the United Nations’s purported push for creation of a world government are stronger than their ties to Big Oil, corporate America, and military contractors. As Secretary Clinton put it, “Whatever arguments may have existed for delaying U.S. accession no longer exist and truly cannot even be taken with a straight face.”
The lack of support for this treaty among some GOP lawmakers is stunning. It shows once again that conservatives’ ideological opposition to the United Nations is getting in the way of smart planning for our natural resources.