Commercial Seabed Mining at last?

I do not have an opinion on UNCLOS, because I have not been persuaded by arguments for or against. I've read it many times, but I am far from an expert. Most Americans don't know anything about it. I think issues involving UNCLOS represents an important discussion on ID, and I fully expect the Obama administration to take on the treaty now that START is completed. With that discussion looming, potentially later this year, I welcome these types of blog contributions on the subject because I believe they are important. The following post is contributed by Dr. Miles Libbey.

Miles is a retired Navy Captain who studied Law of the Sea at the Fletcher School of Law and Diplomacy during his appointment as the Navy's first Samuel Eliot Morison Scholar, eventually leading to a Ph.D.; he founded the startup Seaminr last year to provide technology, international law and business impetus to worldwide commercial seabed mining efforts creating exploration companies.

Commercial Seabed Mining at last?
....UNCLOS gains importance for USA…

The close association of the United States and the Law of the Sea (more correctly UNCLOS, the UN Convention of the Law of the Sea, Dec 82) over its long maturation period from the 60’s until today, has impressively passed a significant milestone Tuesday as the first two commercial claims for polymetallic nodule exploration were approved at the International Seabed Authority (ISA).

These claims are potentially worth many tens of billions of dollars by harvesting the readily accessible, important minerals such as cobalt, nickel, copper and the Rare Earths that are helping to build green motors and generators. Admittedly the impression of “readily accessible” may be stretching the point a bit when these potato-sized rocks lie on the seabed surface at about two and a half miles deep.

30 years ago it was stretching technology some to collect these attractive mineral nuggets… today not so much. Three major inflection points have jointed to revitalize this wonderful ocean resource and technology is one of them. Driven by the feats of the deep water hydrocarbon industry in offsetting foreign US gas and oil, seabed mining can now borrow and shape their technology to use a light touch to bring these metals to the surface. Environmental responsibility is an international byword and backed by regulations evolving with our increasing knowledge.

The economic inflection point could drive the race for seabed resources alone. Market demands for nodules and closely associated crusts cause give economic incentives long lacking in tepid markets for harvesting seabed minerals. The new world economy demanding stainless steel and rare earths for green energy by the burgeoning BRICS (Brazil, India, China, South America …as well as Indonesia, Malaysia and other economies) need more than terrestrial resources can easily and economically provide as we look to the future. By having their claims approved yesterday, the island states of Tonga and Nauru show their prescience by making their claim first, leading the rest of us to understand a environmentally and economically sound path to needed resources.

The final inflection is driven by the international acceptance of over 160 countries of the law of the sea as expressed by UNCLOS. This literal world-wide acceptance has led to a settling and increasing stability of the international legal regime governing the seabed, consequently creating an environment in which capital markets can enter safely and likely thrive.

Infamously, most of the countries who have not yet acceded to UNCLOS are small like the Vatican, do not care because they are landlocked, or have USA in their chant.

The US has several pioneer claims each about the size of Rhode Island with an estimate of over trillion dollars of important metals to harvest: but only after the Senate Foreign Relations Committee breaks its 30-year lock on stopping a full vote of the Senate to allow Ratification. Perhaps Tonga’s and Nauru’s foresight and leadership will change some minds on Capital Hill this year.

UNCLOS: The Coast Guard Weighs In

Admiral Thad Allen has posted some very interesting material on his blog, iCommandant. Last week, in testimony before the Alaska House State of Affairs Committee, RADM Gene Brooks, USCG provided precisely the sort of specific, targeted analysis that helps clarify the debate surrounding UNCLOS ratification. By way of background, Admiral Brooks directs Coast Guard activities involving Alaska and the northern Pacific, has commanded two cutters, and holds a law degree from William & Mary. His testimony is concise and worth reading in its entirety.

On Sunday, I asked whether the advantages of UNCLOS were worth losing the flexibility we currently enjoy under customary international law. RADM Brooks directly addresses that question. While he packs a good deal into his seven pages of testimony, a few main points jumped out at me:

1. Because the Convention codifies both extensive freedom of navigation for all, and expansive economic protections for coastal states, the U.S. - as a major coastal state - enjoys an excellent combination of economic advantages and military flexibility under UNCLOS. This combination is potentially better, and certainly easier to maintain, then what would be available under customary international law.

2. By establishing a 12-mile territorial limit, and allowing law enforcement activities and transit outside that area, UNCLOS limits the extent of “safe havens” for drug traffickers and other criminals. Moreover, this law-enforcement advantage is strengthened off our own coasts by an additional 12-mile zone where we may enforce our laws concerning customs, immigration, and the environment.

3. Since we are not a party to the multilateral UNCLOS, we must assert our rights through bilateral treaties and customary international law. While we doubtless have major advantages over other states in forming CIL and in negotiating with other nations, RADM Brooks believes we are severely handicapped in these negotiations because we have rejected UNCLOS. As he puts it: “the fact that the United States is not a party to the Law of the Sea Convention, when the overwhelming number of our international partners are parties, has occasionally put us in a difficult negotiating position” both in UN bodies and bilaterally. In other words, even if the U.S. decides to opt out of the UNCLOS regime, that decision will have unintended consequences impacting other relationships and institutions to which we have already committed. This is an interesting point: he uses the International Maritime Organization as an example, but there may be others.

RADM Brooks provides examples that show a law-enforcement emphasis: pollution controls, fisheries conservation, drug interdiction. But these tie back into what I see as his strongest argument: UNCLOS allows for a far more efficient maritime security environment by allowing us to work with others instead of shouldering the transaction costs of creating, defending, and administering our own system. Given the multiple challenges facing the sea services, and a world of limited resources, this is not an argument to be lightly pushed aside.

It may be better to settle for second-best rules and save the costs of enforcement (or direct those costs to specific questions such as, hypothetically, whether one may conduct surveillance activities in another state's exclusive economic zone). I don't share the Admiral's optimistic view of international bodies' decision making, with its block voting and biases, but this is a good start toward addressing the costs of locking ourselves into an imperfect system. And these arguments at least acknowledge that UNCLOS is not a panacea.

Some Thoughts on UNCLOS and Customary International Law

Last Monday, the Boston Globe published an editorial supporting ratification of the UN Convention on the Law of the Sea (UNCLOS). The authors, CAPT Melissa Bert of the Coast Guard and Mark Schlakman, had fantastic timing: UNCLOS has been very much in the news. In August, 2007, Russia placed its national flag on the seabed near the North Pole, setting off feverish discussions concerning sovereignty and transit rights in the Arctic. And, of course, China made UNCLOS the centerpiece of its complaints concerning activities recently conducted by the USNS Impeccable in the South China Sea.

The United States has not ratified the Convention, although we are a signatory. Consequently, international law requires that we not act so as to "defeat the object and purpose" of the treaty. But, subject to that broad and largely unenforceable prohibition (found, appropriately, in yet another treaty that we have signed but not ratified), the U.S. is free to act independently in maritime matters, subject to customary international law (CIL) and our other bilateral and regional treaty commitments.

Given that context, the editorial makes one point that got me thinking:

"In the absence of [the Treaty’s] legal framework, history is replete with examples of rogue nations unduly restricting maritime access and encroaching upon others’ interests, potentially compromising military operations, disrupting commerce, and flouting accountability for environmental degradation.

"So far, 156 countries and the European Community have ratified the treaty. Some critics assert that there is no compelling reason for the United States to ratify the treaty because it already adheres to its provisions under customary international law. But this approach is fraught with peril. Customary international law is constantly evolving and does not offer the stability and predictability afforded by the convention.”

This strikes me as essentially correct, but for one detail: the United States, and not a rogue nation, is the entity most capable of influencing this "constantly evolving" field of the law. It simply isn't clear that, for the U.S., stability and predictability come without costs. Let me explain.

There's been some discussion of CIL in the comments, but it's probably helpful to describe what it is and how it's created. Essentially (and leaving out the Latin), all international law is grounded in state consent. Sometimes states accept a new rule by ratifying a treaty; sometimes they "accept" the rule by consistently acting as though they (1) believe a rule exists that is (2) legally binding. Furthermore, once the international community, taken as a whole, creates a norm of customary law, that rule becomes binding on all states, not merely those whose behavior proves the rule. So if states started consistently acting as though surveillance were prohibited in other countries' exclusive economic zones, eventually a rule of law would develop prohibiting such surveillance. And that rule would be binding on everyone. Deciding what is and is not a norm of customary international law is a tricky, fact-intensive business susceptible to manipulation. It's also a good deal of what legal academics and judges on international courts do for a living. But, clearly, the states in a position to act (read: those with a maritime presence) are those whose behavior will be most influential in shaping new and existing norms.

Moreover, there's an exception to this process: if any particular state consistently acts in contravention of an emerging customary rule, it may become a "persistent objector" to whom the new rule, once established, will not apply. But remaining a persistent objector is expensive, especially at sea. One needs to regularly do all the things other states cannot or will not do: transit disputed straights, engage in disputed testing, conduct surveillance where other states are unwilling to do so. One central advantage of U.S. sea power is our ability to carry this burden and effectively assert our rights as a persistent objector. Indeed, we may be alone in this capability.

Captain Bert and Mr. Schlakman make several arguments about the content of the treaty. But, those points aside (and they are important points), one clear result of our joining the treaty would be an end to this flexibility we enjoy under customary international law. In addition, no treaty is comprehensive: there are always interpretive questions. Under UNCLOS, those questions will be decided by international bodies where we have a voice, instead of by custom, where we have a veto.

I understand and respect the impulse to discuss UNCLOS as a set of rules, and debate whether those rules do or do not make sense. That’s an extremely important discussion. But signing on to any set of rules comes with a price. In this case, the price is precisely that we would no longer be governed by customary international law, and would lose something of our interpretive veto. This price may very well be worthwhile, but we should at least look it squarely in the face. Whether lost flexibility is a fair price for stability and a “place at the table” is a fact-specific question, and has important strategic ramifications. I’d be curious to hear the views of experts. But the trade-off itself is too often missed.

Looking at China's recent behavior, I can’t help thinking that other present and future maritime powers may be nudging us toward joining the UNCLOS regime not because of the treaty’s actual content, but merely to pin us down to some concrete and comprehensive set of rules, rather than allowing us to, in essence, create our own.