“China is eating our lunch,” say proponents of U.N. convention that governs freedom of navigation, seabed mining and ocean policy.
There’s new urgency for the United States to ratify the U.N. Convention on the Law of the Sea (UNCLOS), American Legion national security officials were told in a Nov. 18 meeting. “I want to be blunt about it,” explained U.S. Navy Adm. (ret.) Steve Abbot during the virtual meeting. “China is the problem.”
The United States has yet to sign onto the international treaty that was negotiated by the Reagan administration and has been adopted by 168 countries and the European Union since its emergence in 1994.
The convention provides a legal structure to protect freedom of navigation (military and commercial alike), regulate deep-seabed mining, control over-fishing and ensure environmental requirements are met. The approved UNCLOS originally – and intentionally – put the United States into a position of global leadership, particularly in the area of seabed mining, on ocean law beyond national boundaries. Ironically, the United States is one of just a handful of nations (others include Syria, Libya, Iran, Cambodia and Venezuela) that hasn’t ratified the treaty authored largely to meet conditions set by Reagan and the nation and moved to the Senate Foreign Relations Committee under President Bill Clinton. It has never been put to a full Senate vote, despite moving favorably out of committee.
U.S. absence from the treaty has allowed China to expand seabed mining exploration, seek changes that to extend its authority around artificial islands in the South China Sea and monopolize rare-earth and strategic minerals extraction, thus controlling the supply chain to the United States, significantly the U.S. Armed Forces, which use those minerals in many weapons and communications systems, presenters said.
Among those presenting in a virtual webinar to about 70 from The American Legion were Abbot; former U.S. Ambassador John Norton Moore who worked on the Law of the Sea Treaty through multiple administrations, Republican and Democrat; and former U.S. Coast Guard Commandant Adm. (ret.) Thad Allen.
“It is the wild west,” Allen said, referring to exploration contracts in the South Pacific that are expected to become extraction contracts in 2025. “It is the Oklahoma gold rush for rare materials at the bottom of the Pacific basin.”
Free navigation by U.S. military vessels is also imperiled by China’s interpretations and attempts to modify the UNCLOS without American oversight, they explained. As a non-signatory, the United States is most often relegated to an “observer” status on Law of the Sea matters, if that.
“Maybe most seriously, they're demanding advanced notification by U.S. warships to transit Chinese territorial waters in the South China Sea,” Abbot told the group. “That's something we should never agree to. With the U.S. not being a member of UNCLOS, it hugely weakens our ability to oppose.”
Adm. Dennis Blair, a former Commander-in-Chief of the Pacific Command, the command that deals most closely with China, has strongly endorsed the statements of Adm. Abbot and Moore and indicated that advice and consent to the treaty is an urgent national security priority. His endorsement, Moore explained, mirrors a recent letter signed by 346 high-level former U.S. national security officials endorsing urgent advice and consent to the treaty, also signed by 73 generals, 50 admirals, 17 service secretaries or deputy service secretaries, four Directors of National Intelligence, three chairmen of the Joint Chiefs of Staff, three National Security Advisors and 189 ambassadors, among others.
The original treaty, at Reagan’s insistence, would have given the United States a permanent seat on the International Seabed Authority (ISA), which oversees deep-seabed operations. Lacking U.S. involvement, the ISA has granted more than 30 exploration licenses. None have been granted to U.S.-sponsored companies, although the United States reserved four zones to explore, two of which have now been lost to other countries.
Meanwhile, China has five areas of the Clarion-Clipperton Zone under the UNCLOS, southwest of Hawaii. Russia has three. Trillions of dollars worth of strategic minerals and rare-earth resources are on their way to U.S. adversaries, the presenters said.
“China is eating our lunch,” Abbot said.
The presenters urged The American Legion to work with lawmakers to move the treaty to an early vote in the Senate for advice and consent – as early as the tail end of the 118th Congress – that would give the United States a seat at the UNCLOS table, assume leadership over seabed mining and slow down an aggressive China. “There is no group that I believe understands national security and the needs of the United States better than The American Legion,” Moore said.
“China is really moving forward to try to get a monopoly not only on access, but also seeking to push to get a monopoly on refining of these (minerals) in China as well,” Moore added. “And so, this is a critical time. It isn't just theoretical. We are at risk on a day-to-day basis unless we adhere to the Law of the Sea Treaty.”
Now, he and the presenters said, Senate “advice and consent” and a full vote are the lynchpins to turning the tide. “The magic that's needed here is simply to go to the vote,” Moore said, noting that U.S. industrial, business and military leaders have been consistent in their support for U.S. ratification over the years, as are American military allies. “To my knowledge, there is no business group in the United States in opposition whatsoever. They’re all strongly supporting.”
The American Legion has five national resolutions related to the matter and the issues surrounding it:
- Resolution No. 215, passed at the 1992 American Legion National Convention, referenced attacks of the U.S.S. Pueblo (1968), the S.S. Mayaguez (1975) and the U.S.S. Stark (1987) to call on the United States to “exercise U.S. rights to unhindered navigation in international waters whenever necessary to protect U.S. national interests and U.S. international commercial interests.”
- Resolution No. 90, passed at the 2016 American Legion National Convention, addressed China’s island-building in the South China Sea, and the installation of military equipment there, that “would allow China to dominate a major trade route” and “deny access to foreign military forces, particularly the United States.” The resolution states that the South China Sea is international water, and “sovereignty in the area should be determined by the (UNCLOS).”
- Resolution No. 33, also passed at the 2016 National Convention, calls on Congress to require the Department of Defense to “provide regular assessments of the needs of the U.S. rare-earth supply chain for defense and … require the Defense Secretary to have a long-term rare-earth supply plan in the interest of national defense.” The resolution acknowledges China’s global dominance (97%) in rare earth and mineral production and U.S. reliance on the resources for defense.
- Resolution No. 205, also from the 2016 National Convention, lists among 12 foreign policy objectives “support for the appropriate resources to promote and protect U.S. vital national interests worldwide.”
- Resolution No. 118, passed at the 2018 National Convention, supports “a renewed long-term policy framework that demonstrates U.S. commitment to a free and open Indo-Pacific region and the rules-based international order.”
Meanwhile, signatories to the treaty are assigning contracts to mine their portions of the EEZs (exclusive economic zones) and the continental shelf of such valuable – both economic and for national security – minerals as copper, nickel, cobalt, manganese and rare earth. China has five EEZs and Russia three.
Beyond the mining, the UNCLOS affects the limits of territorial seas; rights to ship through straits; oil, gas and fisheries resources; and environmental responsibility. In addition to a permanent seat on the ISA, the United States would have veto power on any changes to the treaty.
Opponents to ratification have argued, among other things, that the treaty would undermine U.S. sovereignty, muddy U.S. involvement in dispute-settlement cases and put the United States under international governance. Those and other arguments have stalled U.S. ratification, and, writes Moore in his 2023 book “The Struggle for Law in the Oceans,” are false, misleading and not based in fact. “Responsibility for the delay lies squarely on the isolationist narrative.”
- Security