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Hundreds of former national security, military and political leaders are calling on the Senate to ratify the United Nations’ Law of the Sea, warning last week in a letter to lawmakers that China is taking advantage of America’s absence from the treaty.
Countries that ratified the Law of the Sea treaty are now rushing to stake claims on the international seabed for deep sea mining. At stake are trillions of dollars worth of strategic minerals strewn on the ocean floor, essential for the next generation of electronics. China has five exploration sites, 90,000 square miles –the most of any country. The U.S. has none. It is blocked from the race because of the Senate’s refusal to ratify the Law of the Sea.
“We are not only not at the table, but we’re off the field,” lawyer John Bellinger, who was a legal adviser to former President George W. Bush, said. “The United States probably has got the most to gain of any country in the world if it were party to the Law of the Sea Convention, and conversely, we actually probably have the most to lose by not being part of it.”
What can be gained from the Law of the Sea Treaty and deep sea mining
Vast quantities of minerals are scattered across the ocean floor. Researchers have found potato-sized lumps of rock, known as nodules, filled with cobalt, nickel, manganese and copper — some of the most valuable metals on earth. They’re vital for everything from electric cars to defense systems.
To avoid a free-for-all, 168 countries, including China, have signed onto the United Nations Law of the Sea treaty, which divides the international seabed.
The United Nations adopted the Convention on the Law of the Sea (UNCLOS) in 1982. Often called the constitution for the ocean, the treaty codifies existing international law on freedom of navigation. It also created the International Seabed Authority, which regulates the new deep sea mining industry.
President Bill Clinton signed the treaty, but it was dead on arrival in the Senate who refused to ratify the treaty, saying it undercut American sovereignty.
Why the U.S. won’t ratify the treaty
Despite broad bipartisan support — including efforts by five presidents — the treaty has hit a wall in the Senate year after year.
Bellinger, who was a legal adviser to former President George W. Bush, testified in favor of the treaty at Senate hearings in 2012. While Bush was not a fan of U.N. treaties, Bellinger said Bush supported the Law of the Sea Treaty, not only for codifying access to the ocean floor, but also because the treaty guarantees the freedom of navigation around the world that’s so important to the Navy.
In 2012 – the last time the Senate held hearings on the treaty – the Law of the Sea had the support of the president through the intelligence community, big oil, major business groups and the U.S. military, Bellinger said. He thought it was a slam dunk.
It failed.
The conservative Heritage Foundation convinced 34 Republican senators to vote against the treaty, saying it would subjugate the U.S. to the U.N.
“The opposition was not on national security reasons or on business reasons,” Bellinger said. “It to me seemed just a reflexive ideological opposition to joining the treaty.”
Heritage Foundation senior policy analyst Steven Groves also testified in 2012. He said the U.S. didn’t need anyone’s permission to mine the seabed. His views haven’t changed.
“What businessman in their right mind said, ‘I’m going to invest tens of billions of dollars into a company that I will then have to go…and ask permission from an international organization to engage in deep seabed mining,'” Groves said.
He insists American companies are staying away not because the U.S. hasn’t ratified the treaty, but because deep sea mining isn’t viable.
“If China wants to go and think that it’s economically feasible to drag those nodules up to the surface and process them, let them do it” Groves said. “The United States has decided to stay out of the game. The one U.S. company that had rights to the deep seabed got out of the game, that’s Lockheed Martin.”
But Lockheed Martin has not entirely quit. The defense giant had rights to four Pacific seabed sites; it sold two and is holding onto two in case the treaty passes.
But Lockheed told “60 Minutes” that if the U.S. doesn’t ratify the treaty, it can’t dive in.
Ambassador John Negroponte, a former director of National Intelligence in the Bush administration, said the Heritage Foundation is still standing in the way.
“What Heritage is saying is ‘we don’t even want to give ’em a chance. We have—we know the answer already. And I, you know, I think that’s sort of hypothetical thinking,” Negroponte said. “The pragmatic approach would be to say, ‘OK, let us have access and see what happens.'”
How the U.S.’s failure to ratify the treaty could hurt American business, empower China’s economy
With seabed mining starting as early as next year, China is in place to dominate it. China already controls a near monopoly of critical minerals on land. Now it wants to extend that control to the ocean floor. If it succeeds, there are national security fears the U.S. could end up even more dependent on China for these critical minerals.
“If they end 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,” Negroponte said.
In the years since 2012, China has become more assertive on the international scene, especially in the South China Sea, Negroponte said.
“And then with respect to deep seabed mining, they’re eating our lunch,” he said.
Unless America ratifies the treaty, it won’t have a say in drafting environmental rules for seabed mining that are underway now. With the U.S. absent, China is the heavyweight in the room at the International Seabed Authority.
“We are conceding,” Negroponte 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. Well, who would you prefer to see writing those guidelines? The People’s Republic of China or the United States of America?”
Military concerns over the U.S. failure to ratify the treaty
Concerns over China’s expansive powers in the deep sea are about more than mining. Many national security, military and political leaders are warning that China is taking advantage of America’s absence from the treaty to pursue overall naval supremacy.
Thomas Shugart, a former U.S. Navy submarine warfare officer and a senior fellow at the Center for a New American Security, said being outside the treaty undercuts American credibility while China is laser-focused on building its maritime power. Shugart said China’s deep sea miners have a second mission: collecting information for the Chinese military.
“If you’re going to find submarines in the ocean, you need to know what the bottom looks like. You need to know what the temperature is. You need to know what the salinity is,” Shugart said. “If China is using civilian vessels to sort of on the sly do those surveys, then that could improve their ability to find U.S. and allied submarines over time as they better understand that undersea environment.”
Shugart also said China is flexing its maritime muscle by claiming the South China Sea as its private ocean.
The country has challenged the treaty’s navigation laws that ensure safe passage by harassing passing ships, including the U.S. Navy. China has fired water cannons at its neighbors, caused collisions and even flashed a military-grade laser at ships.
For Groves, of the Heritage Foundation, that’s why the treaty is meaningless.
“It’s China who is a party to the treaty who doesn’t obey the rules of the road,” Groves said. “They’re the ones getting into near collisions with U.S. vessels in the South China Sea. The United States respects and adheres to international law. It is the Chinese who are the scofflaws here. And the idea that the U.S. joining the treaty would somehow change that Chinese behavior has no basis in reality.”
But Shugart said that when the U.S. calls out China for violating the law, China responds, “well you’re not a signatory… so what do you have to say about it?”
“We are in a messaging contest and an effort to win hearts and minds all over the world against what is clearly our greatest strategic competitor,” Shugart said.
In Washington, Negroponte’s group continues to lobby the Republican holdouts in the Senate as China forges ahead. When “60 Minutes” reached out to those senators who torpedoed the treaty in 2012, their opposition today was as strong as ever.
“It just doesn’t make sense to a conservative to say, ‘these minerals that are in the deep seabed are so important to the United States, we are done without those, let’s put an international bureaucracy in charge of getting us access to them,'” Groves said.
Sen. Mike Lee, a Republican from Utah who opposed the treaty in 2012, maintains that there’s nothing in the Law of the Sea that advances America’s interests.
“The U.S. needs to reject the constant impulse to cede sovereignty by allowing unelected and unaccountable global bureaucrats [to] regulate away new frontiers,” Lee told “60 Minutes” in a recent statement. “Ratification today would be a win for the climate lobby and the global elites who feel entitled to govern from the shadows. I remain opposed to ratification of UNCLOS because the price of admission is a nonstarter.”
