High Stakes on the High Seas: What the U.S. Stands to Gain from the UN Law of the Sea

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The ocean floor contains some of the most valuable minerals in the world. These substances - including cobalt, nickel, and manganese - fuse together in formations called nodules and are used in everything from electric cars to essential infrastructure. In 1982, as demand for such products spiked and improved engineering capabilities made deep sea mining both more efficient and more lucrative, the United Nations adopted the Convention on the Law of the Sea (UNCLOS). Its aim was to set up guardrails for mining in order to avoid the inevitable free-for-all by nations seeking to benefit, as well as codify existing international laws on freedom of navigation. Importantly, it also established the International Seabed Authority, which helps to regulate the many facets of the growing deep sea mining industry.

Today, 168 countries - including China - have signed onto this "ocean's constitution." And although the U.S. is not yet a party to the Law of the Sea, that soon may change.

Why It Matters

When UNCLOS was originally adopted by the UN General Assembly, the administration of then-President Clinton was quick to sign onto the proposal. However, because a treaty requires ratification by the U.S. Senate, it was unfortunately - though not unexpectedly - greeted by the Senate with skepticism. Like many similar international agreements, a vocal minority claimed that the pact would undercut American sovereignty at worst, or at least, that adherence to the treaty would prove too onerous for companies wishing to dive into the industry. (To be fair, deep sea mining was still an emergent field at the time, and some substantive questions surrounding mining practices and territorial claims had not been fully explored.)

With deep sea mining bubbling back to the surface, however, a push for Senate ratification is inspiring a chorus of proponents to speak out. In March, hundreds of former diplomats, military personnel, and policymakers sent a letter urging Congressional action. Their message was clear: ratify UNCLOS.

Led by retired Ambassador John Negroponte, the signatories argued, "In the decade since UNCLOS was last considered by the Senate, China and Russia have taken advantage of [U.S.] absences to work actively to undermine critical United States economic and national security interests." They warned that non-participation has already caused the U.S. to lose half of its designated deep seabed mine sites, "each containing a trillion dollars in value of the strategic minerals."

"Continued inaction," they note, "means a likely quick loss of our remaining two designated sites. Moreover, China has moved forward to obtain five sites and the Russian Federation three and they are moving to obtain a monopoly on refining of these strategic minerals."

"If we're not at the table and we're not members of the Seabed Authority, we're not going to have a voice in writing the environmental guidelines for deep seabed mining."

Their point on China is an important one. In a subsequent interview, Amb. Negroponte expressed further concern over U.S. absence from the Law of the Sea. "If [China] ends up being the largest producer and we're not producing at all from the ocean… I think then that might place us in a difficult economic position," he said. "If we're not at the table and we're not members of the Seabed Authority, we're not going to have a voice in writing the environmental guidelines for deep seabed mining."

His remarks are well-founded. In the last two decades, China has secured five deep sea exploratory sites spanning 90,000 square miles, the most of any country. By contrast, the U.S. - because we're not currently a party to the treaty - has none. This is also occurring at a time when Beijing is growing more assertive in the South China Seas and throughout the Pacific, where climate change threatens to wipe many small island nations off the map, leaving an untapped bounty beneath the surface. As Negroponte notes, "With respect to deep seabed mining, [China] is eating our lunch."

Writing for Foreign Policy, reporter Christina Lu puts a finer point on the strategic imperative for ratification: "U.S. lawmakers' turn to deep-sea mining is part of Washington's broader effort to secure alternative critical mineral supply chains and minimize potential vulnerabilities that Beijing could take advantage of. China commands the processing and refining of many of these minerals and metals - including powerful rare earth elements - a dominance that it has previously leveraged to hit back against other powers."

"U.S. lawmakers' turn to deep-sea mining is part of Washington's broader effort to secure alternative critical mineral supply chains."

Russia, too, is taking advantage of U.S. non-participation in UNCLOS, leveraging its position within the body to "secure unprecedented rights in ice-covered areas and obtain recognition for sovereign rights over a sizeable continental shelf." Jan Jakub Solski goes on to note, "The outer continental shelf regime, often considered the primary 'carrot' of UNCLOS, has worked in Russia's favor, exemplified by its status as the first country to apply to the CLCS."

Absent U.S. ratification, American ships and aircraft are vulnerable to legal challenges when transiting the oceans. The U.S. can't sponsor license applications for American companies hoping to mine in international waters. American businesses aren't guaranteed access to our two deep seabed sites to mine critical strategic minerals. And the U.S. lacks a vital seat on the Council of the International Seabed Authority, which would provide us with a voice and a vote in important environmental rules for seabed mining.

Fact is, the UN Law of the Sea is an extension of national security principles and economic interests, not a contradiction. We'd be wise to jump on board.

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