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According to U.S. foreign relations law, the United States may engage in deep seabed mining activities even if it does not accede to UNCLOS, provided that such activities are conducted without claiming sovereignty over any part of the deep seabed and as long as the mining activities are conducted with due regard to the rights of other nations to engage in mining.This position is also reflected in the Deep Seabed Hard Mineral Resources Act of 1980.
- US companies could still mine deep seabed outside UNCLOS by going through foreign subsidiaries
- US ocean policy already allows development of deep seabed mingling resources within US EEZ
- Under 1980 DSMHRA Act, US citizens and corporations are fee to mine deep seabed regardless of whether US is party to UNCLOS
- An informal, non-UNCLOS, multilateral organization would be sufficient to protect U.S. interests in mining deep seabed
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Some opponents of UNCLOS have argued that by ratifying UNCLOS, U.S. military forces could be subject to adverse ruling by international tribunals through the dispute resolution mechanisms of the treaty. However, the U.S. defense department has reviewed the relevant law and has found no undue liability risk to U.S. forces. Furthermore, in the Senate's Advice and Consent resolution that would ratify UNCLOS, the U.S. has taken advantage of article 298(1) in UNCLOS to exempt itself from all dispute settlement.
- US advice and consent resolution regarding UNCLOS already excludes military activities from third party arbitration
- On balance the U.S should welcome the dispute resolution mechanisms in the treaty
- U.S. can issue signing statement upon ratifying UNCLOS that clarifies to interpretation of the military activities exemption
- U.S. can exempt its military activities from dispute resolution tribunals
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Acceding to UNCLOS would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or through the atmosphere. Regardless of the merits, the U.S. would be forced to defend itself against every such lawsuit at great expense to U.S. taxpayers. Any judgment rendered by an UNCLOS tribunal would be final, could not be appealed, and would be enforceable in U.S. territory.
- Navy would be the target of a deluge of lawsuits under UNCLOS
- Under UNCLOS, US could be subject to arbitrary lawsuits with binding authority for international tribunals
- U.S. ability to exclude its military from arbitration is not absolute and our adversaries will use that to their advantage
- Even proponents of Law of Sea acknowledge ambiguity of 'military activities' clause could lead tribunal to rule against U.S. military
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Ratification of UNCLOS would bolster U.S. national security in numerous ways, including: protecting all six core freedom of navigation rights, protect maritime interdiction rights, and supporting efforts to combat piracy.
- UNCLOS supports all six core competencies of the U.S. Navy
- UNCLOS provisions directly support and improve ability of Coast Guard to complete its law enforcement and homeland security missions
- Ratification of UNCLOS would further US national security interests in multiple ways
- UNCLOS supports U.S. national security objectives by ensuring freedom of navigation rights and supporting maritime interdiction operations
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U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 Law of the Sea Convention, and as supplemented by diplomatic protests and assertion of rights under the Freedom of Navigation Program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.
- Empirically, UNCLOS has been no more effective than customary international law at reducing excessive claims and maritime conflict
- Even as a non-party to UNCLOS, US navigational rights have been protected for decades through customary international law
- Ratification of UNCLOS would trade existing stability provided by customary international law for rule by tribunals
- Customary international law already protects U.S. navigation rights
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Opponents of UNCLOS claim that the United States should not become a party because the United States already enjoys the benefits of UNCLOS through customary law and, therefore, should not unnecessarily incur the treaty's burdens. However, this ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.
- Relying on customary international law to preserve freedom of navigation is not timely enough of a response for commercial interests
- Customary international law is no longer viable because of the increasing number of excessive claims
- While the risks to the US from its non-party status may have been negligible, this is no guarantee that this will continue
- China and other counties are reinterpreting customary international law to detriment of the U.S.
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U.S. companies increasingly seek to engage in seabed mining for minerals such as rare earth elements and cobalt that are critical to the broad U.S. economy and used in producing defense assets. The deep seabed contains two potential sources for rare earth elements: polymetallic nodules which typically contain manganese, nickel, copper, cobalt and rare earth minerals; and sea-floor hydrothermal vents which pump out rare-earth elements dissolved in their hot fluids.
- Seabed mineral deposits could hold more than 110 million tons of rare earth minerals
- Demands for rare earth metals and instability in current producer states are driving deep seabed exploration
- U.S. losing out on race for rare earth minerals from deep seabed
- India is working to mine rare earth elements from seabed to counter China's monopoly
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Deep seabed mining has not taken off because the technology to exploit the seabeds is not at a state where it would be economically viable to do so.
The technology for deep-sea mining is already widely available, consisting of 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.