Evidence: Recently Added
By ratifying the treaty, the U.S. will not instantaneously regain its former influence, but it will be a huge step in the right direction compared to its static approach for the past three decades.187 Upon ratification, the U.S. will first regain its seat on the ISA’s Council.188 In addition, the U.S. will gain “important veto rights over distribution of any future revenues from deep seabed exploitation to national liberation groups.”189
Not only will the U.S. regain a seat on the ISA’s Council, but also it will have the ability to participate in the elections of judges for the International Tribunal for the Law of the Sea,190 members of the Commission on the Limits of the Continental Shelf (CLCS),191 and other arms of the ISA.192 This is a critical opportunity for the U.S. to place its own representatives in key areas of the ISA to help restore U.S. presence in vital matters concerning the Area.193 Furthermore, by reasserting itself as an authoritative component in the ISA, the U.S. will be better able to sway other nations in the issuing of decisions by the ISA.194 By taking this route versus obtaining a “veto” power over all ISA decisions, the U.S. will be more respected by Member States rather than being seen as a haughty and stubborn Western power as characterized by Molitor.195
Advocates against U.S. accession believe it would disadvantage U.S. interests and place the U.S. under the thumb of the ISA.168 The assertion that U.S. interests will be lost in the sea of interests of the other 167 Member States is misplaced.169 U.S. interests have not been represented, in part, due to its 33-year absence.170 The deep seabed mining framework continued to develop and gain popularity despite the U.S.’s absence.171 Only by acceding to UNCLOS, will the U.S. regain its proper place as a world leader in shaping the law of the sea while representing its own interests in the proper international arena—before the ISA.172
When the treaty was still gaining its sea legs, the U.S.’s influential impact was evident through its ability to band seven industrialized nations173 into forming the Provisional Understanding, an agreement that operated outside the ISA’s purview.174 After the ISA declared the Provisional Understanding “wholly illegal” under UNCLOS, all seven members of the treaty essentially abandoned the U.S. and ratified the treaty in the 1990’s.175 The realization that the ISA’s deep seabed mining was becoming increasingly appealing became a significant factor in the U.S. diminishing influence over matters relating to the law of the sea.176
Lockheed Martin, a U.S. based company, has been a large proponent of recognizing the need for the ISA.120 In June 2012, the chairman of Lockheed Martin sent a letter to the U.S. Senate stating, “[Lockheed Martin] wanted to join the race for undersea riches, but could not assume investment risks until it was clear that it would have a clear legal title to its findings.”121 Lockheed Martin stated it is unwilling to do so absent U.S. ratification of UNCLOS.122
Lockheed Martin also participated in a 2012 movement known as The American Sovereignty Campaign, which was comprised of members from the government and private sector.123 The campaign’s goal was to send Congress a message: that U.S. accession to UNCLOS would “invite economic opportunity, create U.S. jobs, and protect business and commercial interests at home and abroad.”124 Lockheed Martin is the only U.S. based holder of exploration licenses granted by the ISA.125 Jennifer Warren, Vice President of Lockheed Martin stated, “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,” referring to the legal structure created by the ISA and UNCLOS.126
Given the likely economic and military impacts of cable breaks, the ability to threaten or protect submarine cables and their shore landings will be increasingly important in future conflicts. In a crisis, an aggressor could use multiple coordinated attacks on cables to compel an opponent to back down or employ them as part of an opening offensive to cut off the defender’s military forces from national commanders, intelligence data, and sensor information. Cable attacks could also be highly destabilizing, since they could prevent a nuclear-armed opponent from controlling and monitoring its strategic weapons and early-warning systems. In response, the country targeted could choose to place its nuclear weapons in a higher alert condition – or initiate a preemptive attack.
The United States benefits from a rules-based international order that enhances economic well-being, respects human rights and human dignity, and supports mechanisms for the peaceful resolution of disputes while providing for territorial integrity and defense of the United States and its allies. In the Arctic, which is in rapid flux due to the changing climate, no one country can manage the coming challenges alone. A collective approach is needed to mitigate and adapt to changing realities, advance scientific understanding, and build resilience and capacity; the UN Convention on the Law of the Sea is part of this rule-based order.
There are many reasons why ratification of UNCLOS serves U.S. interests—not least of which, the convention would allow the United States to make claims on the arctic seabed beyond its current exclusive economic zone. Perhaps most importantly, as Sen. Ben Cardin recently pointed out, ratification of UNCLOS would help the United States continue to “build a world of rules, law, and order.”
None of these benefits changes the fact that Senate ratification of the treaty will result only in a slight modification to Chinese rhetoric, and no change in Chinese policy. While Washington and most Southeast Asian nations would like to see tensions in the South China Sea resolved through application of shared rules and norms, Beijing has shown its determination to settle the matter through power politics. To be sure, the United States must continue to show that international law is the way to peacefully resolve these disputes—but the United States joining UNCLOS will not have a tangible impact on that effort.
Second, the only thing that the United States would achieve by joining UNCLOS—at least from the perspective of modifying Chinese behavior—would be to deprive Beijing of its talking point that U.S. exhortations to claimant states to comply with UNCLOS amount to “hypocrisy.” Deprived of this talking point, there’s no reason to believe that Beijing would submit to the tribunal’s authority. Although U.S. ratification of UNCLOS would be a boost to the prestige of the convention, Beijing has evidently made a calculated judgment that defending its perceived sovereignty and the strategic value of physical control of large stretches of the South China Sea outweighs whatever reputational damage it suffers as a result of flouting the tribunal’s decision.
First, while the United States has a strong interest in peaceful resolution of competing territorial claims in the South China Sea, it is not itself a claimant, and thus UNCLOS would provide no additional tools for the United States to use in addressing disputes in the South China Sea. While U.S. ratification of UNCLOS would allow U.S. nationals to serve on arbitration panels, such representatives are expected to exercise independent reasoning and do not take instructions from member governments.
If anything, the presence of an American on the panel would have played to the suspicions of hardliners in China who view international legal regimes as a vehicle for advancing U.S. interests. If this sounds farfetched, consider that the Chinese ambassador to ASEAN recently accused Washington of “staying behind the arbitration case as the manipulator, and doing whatever it can to ensure that the Philippines wins the case.”
The United States strictly adheres to the provisions of the Law of the Sea Convention. We understand the value of upholding international law. By establishing universal standards for global issues, we give diplomacy a better chance of succeeding and help ensure that a large country like China won’t simply steamroll smaller neighbors when disagreements arise. Ordinarily, the United States would be in a good position to urge governments to stick to their obligations and abide by the Tribunal’s decision.
Except we’re not party to the Law of the Sea Convention. By our own choosing, we are shut out of the process. Despite the fact that the United States champions freedom of navigation and the international rule of law, our Navy carries out those policies around the world and has long supported joining the Convention, and the Convention has won broad bipartisan support, a handful of Republican Senators have undercut America’s ability to stand up for our own values and interests. This is particularly troubling at a time when one of the pivotal international concerns of the 21st century is coming to a head.
American leaders will continue to support the Tribunal and encourage governments to abide by its decision. But we can and should be doing more, to include ratifying the Convention itself. The stakes are simply too high for the United States to take itself out of the lineup. China is working to deepen divisions and consolidate its power in Asia. If China gets its way, it will derail efforts to establish a rules-based order in the Asia-Pacific, worsen a potentially dangerous situation in the South China Sea, and undermine America’s ability to ensure maritime stability around the world.
Given the tenor of events following Russia’s flag planting stunt, the threat of nonpeaceful disputes over Arctic sovereignty is not implausible.224 A week after Russia’s submarine dive, Canadian Prime Minister Stephen Harper announced that Canada would construct two new military facilities in the Arctic, build six to eight navy patrol ships to guard the area, and increase its military forces by 900 troops in order to protect Canada’s asserted sovereignty over the Arctic and its natural resources.225 Russian bombers appeared over the Arctic a few days later, for the first time since the Cold War.226 Harper, flanked by his Defense Minister and Canadian troops, said in a speech at the site of one of the future facilities that “Canada’s new government understands that the first principle of Arctic sovereignty is: Use it or lose it.”227 As troops, ships, and bombers circle the Arctic, this fragile region faces yet another threat: war.
The Commission has a limited role in the success or failure of the coastal States’ Article 76 claims. It is powerless to stop a coastal State whose claim it has denied from nevertheless behaving as if the claim had been approved. For example, if the Commission rejects Russia’s Article 76 claim, Russia could nevertheless continue to claim Alpha-Mendeleev and Lomonosov Ridges as part of its continental shelf, and could develop oil and gas in those areas of the Arctic. If Canada disagrees with Russia’s behavior—as it certainly would—it is not clear what peaceful means it has to make its dispute. Thus, the specter of armed conflict—for which Russia and Canada appear to be preparing—looms over an already dire situation.