1AC

UNCLOS 1AC
 1AC – Plan

The United States ought to become party to the United Nations Convention on the
Law of the Sea.
 1AC – Diplomacy

Advantage 1 is Diplomacy.

The South China Sea is uniquely unstable now—Trump unpredictability and regional
insecurity.
Spirlet 24
[Thibault Spirlet Nov 13, 2024, 3, 11-13-2024, "Trump's first term avoided a fight in the South China Sea.
It's only getting harder.", Business Insider, https://www.businessinsider.com/trump-harder-time-
countering-china-south-china-sea-2024-11] Julia T

As President-elect Donald Trump prepares to return to office, one of his biggest challenges could be an
issue that hardly came up on the campaign trail. The South China Sea — contested waters that China
says are its own and the US says belong to no single nation — has only grown as a risk factor in the
years Trump was out of government. During his first term, Trump's administration took a hard line
against China, stepping up its patrols and exercises in the region, and rejecting Chinese territorial claims.
Since then, China has expanded its presence in the region, growing more willing to confront other
countries there, including the Philippines, an ally the US is treaty-bound to defend. "The margin for
error has shrunk since 2016-2020," said Hunter Marston, an Asia-Pacific researcher at the Australian
National University. "It would now take less of a spark for a skirmish or collision to trigger a conflict
involving all parties," he said. A vital ally Trump hasn't said how he would handle the region in his
second term as president. South China Sea observers expect continuity with the Biden administration,
which tried to ramp up diplomatic efforts and strengthen US alliances and security partnerships. Gregory
Poling, director of Southeast Asia Program at the Center for Strategic and International Studies, said that
Trump "introduces a level of personal unpredictability compared to Biden." "But there is no reason to
expect any major changes to US policies on this front." A delicate balance to strike Trump, like President
Joe Biden before him, has a delicate balance to navigate. Recent months have seen clashes between
Chinese and Filipino coast guard vessels, including one where swords and knives were brandished.
Chinese Coast Guard holding knives and machetes as they approach Philippine troops in the Second
Thomas Shoal at the disputed South China Sea Chinese Coast Guard holding knives and machetes as
they approach Philippine troops in the disputed South China Sea on June 17, 2024. Armed Forces of the
Philippines via AP, File Under a treaty from 1951, the US is obliged to aid the Philippines against armed
attack — something China has avoided through so-called gray-zone operations that are not technically
"armed." The Filipino secretary of national defense told CBS News' "60 Minutes" in September that
there were ongoing discussions about exactly what would prompt US intervention. Though Trump hasn't
outlined a specific South China Sea plan, he could pursue his broader foreign policy mantra of "peace
through strength." That brings its own risks. "Unrestrained US militarization is precisely what drives
Beijing's insecurity and will continue to exacerbate tensions in the South China Sea," Marston said. An
alliance at stake Sari Arho Havrén, an associate fellow at the UK's Royal United Services Institute
specializing in China, said Trump would need to decide how much to commit to the region. "To be
globally influential, the US needs its allies," she said. Trump has often adopted a skeptical posture
toward alliances he deemed unfair to the US — including its roles in helping the defense of Europe, its
support for Ukraine, and its military commitments in South Korea. President Donald Trump arrives to
speak during an election night event at the Palm Beach Convention Center on November 06, 2024 Zeno
Leoni, a lecturer at King's College London's Defense Studies Department, believes US economic interests
in the South China Sea make the region an exception. A yearlong conflict in East Asia, which covers the
South China Sea, could result in a 5-10% loss of US GDP, according to a 2016 research report by the Rand
Corporation, a prominent think tank. Leoni believes the Trump administration will try to achieve
balance. "Both Trump's and Biden's National Security Strategy prioritized tackling the rise of China, and
this is unlikely to change in the context of a more isolationist foreign policy," he said.

Escalates to global nuclear war – apathy will torch international norms and
assurances.
O'Hanlon and Poling, 20 --- *senior fellow and director of research in Foreign Policy at the
Brookings Institution, where he specializes in U.S. defense strategy, the use of military force, and
American national security policy, AND **senior fellow for Southeast Asia and director of the Asia
Maritime Transparency Initiative at CSIS (January 14, 2020, Michael O'Hanlon and Gregory Poling,
“Rocks, Reefs, and Nuclear War,” https://amti.csis.org/rocks-reefs-and-nuclear-war/, JMP))

As the 2020s begin, the world can breathe a collective sigh of relief that the United States has so far
avoided a major military crisis with China. Over the past decade, China challenged the lawful rights of
U.S. partners and allies in the western Pacific, built massive artificial island bases in the disputed Spratly
Islands, and actively sought control over all the waters, seabed, and airspace of the South China Sea. Yet
the United States has maintained its access to those waters, deterred any major Chinese use of force
against its neighbors, and helped support the efforts of Japan to maintain administrative control over
the disputed Senkaku Islands in the East China Sea. U.S. strategy has been notably less successful in
preventing China from robbing Southeast Asian partners, including U.S. ally the Philippines, of their
resources and rights in the South China Sea. But the United States has at least slowed China’s advance
while avoiding war.

It would be unwise, however, to assume that the status quo is stable. Deterrence has not failed—yet.
China is unlikely to do something as brazen as forcefully denying U.S. Navy or commercial ships access to
the South China Sea, attacking American or Japanese bases, or intentionally sinking Filipino sailors in
disputed waters. But Beijing continues to probe and test U.S. and allied resolve, provoking low-level
crises which could easily escalate. Current U.S. strategic thinking could trigger disproportionate
responses that would cause such crises to spiral out of control. That is the way World War I began a
century ago—and it could happen again.

War games seem to confirm these historic lessons. One of us has taken part in numerous simulations
over the last five years asking seasoned experts and officials to role-play how Chinese, Japanese, Filipino,
and American leaders might respond to crises in the South and East China Seas. The results are typically
sobering. Some end in a rapid Chinese fait accompli, such as the seizure of a disputed island with
minimal cost, while U.S. and allied leaders dither. This type of scenario would lead to considerable
damage to international norms, U.S. alliances, and American national security.
Even more simulations rapidly escalate into full-scale conflict, bringing China and the United States to
the doorstep of nuclear war over stakes that no rational observer would consider worth it. The U.S.
national security community tends to view the ability to defeat China (or Russia) in combat wherever an
ally might be attacked as an essential goal. Direct defense or prompt reversal of any aggression, no
matter how small, are the foundational principles of current strategy. Article 5 of the NATO treaty and
similar mutual defense commitments to Japan and the Philippines treat all aggression as an equally
existential threat. So in a scenario involving a Chinese landing on the Japanese-administered Senkakus
or a threat to the Sierra Madre—a derelict Philippine navy ship intentionally ran aground at Second
Thomas Shoal in the Spratlys and now housing a dozen soldiers—American strategic culture most often
leads to the conclusion that kinetic action to retake a seized feature or outpost is justified to avoid
abandoning an ally and damaging U.S. credibility.

But such an escalation, while it should be kept as an option, would be fraught. It might end quickly,
amounting to little more than a skirmish, or large-scale conflict between nuclear-armed superpowers
could ensue. Both sides would have powerful political incentives to escalate further. Military warning
and communications systems might be targeted through cyberattack or other means in a way that
sowed confusion. Escalation control could not be guaranteed—history and military scholarship strongly
suggest as much, and many war games corroborate it.

Reliance on customary i-law threatens military operations. Ratification strengthens

capabilities through stability and predictability.
Feinman, December 2024 --- LL.M. Candidate, 2025, Université Paris-Panthéon-Assas; J.D. Candidate,
2025, Fordham University School of Law (December 2024, Dean Feinman, “LOST AT THE SOUTH CHINA
SEA: A LEGAL RATIONALE FOR JOINING UNCLOS,”
https://fordhamlawreview.org/wp-content/uploads/2024/11/Vol.-93_Dec_04_Feinman-945-991.pdf,
JMP))

*FON --- Freedom of Navigation

III. BENEFITS AND IMPLICATIONS OF RATIFICATION

“We have negotiated ourselves in a position where this is most favorable to us. It is almost like having a
lottery ticket—a winning lottery ticket—that you do not cash in.”355

The decision to ratify UNCLOS implicates broad State interests. Admittedly, this Note focuses on merely
one instrument of national power356—the legal dimension—but it reaches a similar conclusion as
security and defense officials: ratification is in the best interest of U.S. FON.357 Moreover, as the
security environment becomes increasingly complex, the need for stability and predictability becomes
more urgent.358

This part presents three principal benefits of ratification. Ratification would: (1) lock in a favorable status
quo by providing legal substance and stability, (2) allow the United States to proactively and responsibly
challenge divergent practices by facilitating better options and relationships with allies, and (3) provide a
venue for the United States to shape the future of the law.
However, before moving to the benefits of ratification, it is important to address the main security
concerns opposing ratification. First, opponents argue nebulous treaty language does not give concrete
protections to what the United States considers important military and intelligence gathering rights.359
The fear is genuine; however, it is not clear what capabilities and to what extent they may be
threatened. Many defense and state officials contend ratification would strengthen U.S. capabilities by
clarifying the extent of its FON rights.360 They also indicate that opting out from disputes concerning
military and intelligence activity is sufficient to protect these interests.361

Second, opponents contend the treaty would subject the United States to unfriendly international
courts in binding proceedings with hostile jurists.362 They argue that international overreach, married
with tribunals’ authority to define their own jurisdiction, will leave important U.S. interests vulnerable to
international courts’ interdiction.363 Particularly in light of the South China Sea Arbitration award—in
which the tribunal granted itself jurisdiction despite China’s declaration opting out of all available
categories364—the argument is not merely hypothetical. Although these arguments raise important
concerns, this Note argues that the benefits gained from participating with the international community
in the maritime domain outweigh these concerns. The rest of this Note explores these benefits.

A. Perpetuate the Favorable Status Quo

As scholars and security experts have repeated, “the United States could not have obtained a better
deal than that contained in the Convention.”365 So long as FON remains the bedrock of U.S. maritime
power and economic prosperity,366 stability in the law of the sea will remain a top concern. UNCLOS,
which is favorable in both the substance and stability of its content , is the best tool to achieve U.S.
oceans policy.

1. A Remarkably Good Deal

UNCLOS provisions are, practically speaking, the most favorable set of rules for the United States.367
Although undoubtedly UNCLOS contains compromise, the value in stability and predictability of a
comprehensive treaty outweighs the inherent indeterminacy of customary law.368 The aggregate
instrument, its widespread acceptance, and the constancy it provides are more significant than the
marginal compromises required to achieve the treaty. This is especially true after the implementing
agreement revoked contentious deep seabed mining provisions, a colossal concession from the
international community.369

The codification of a twelve nautical mile territorial sea, the right to a 200 nautical mile EEZ, innocent
passage, transit passage through international straights, and freedom of navigation on the high seas are
all fundamental to the U.S. policy of modern global FON. And all are central components of UNCLOS.370

2. A Firmer Foundation Than Customary Law

UNCLOS provides a firmer foundation of law, which is to say it is less susceptible to erosion and
evolution than customary law.371 UNCLOS establishes a single, static, and authoritative instrument with
a baseline of States’ rights and obligations.372 Ratification would allow the United States to profit from
this rule set while avoiding the constant evolution of custom and the perennial attention that is required
to upkeep the customary status quo.373
Opponents of ratification argue that the United States has prevailed in protecting its oceans policy
without joining the treaty.374 Therefore, they conclude, ratification is unnecessary.375 The argument is
logically attractive but misleading. First, the geopolitical status quo is changing. What worked in
the past may no longer work as threats evolve.376 The White House recognizes China’s
unique potential and desire to shape the global order.377 Given the SCS’s importance to China’s vision,
it would be remiss to overlook its intent to reshape the law of the sea.

Second, even if the U.S. policy has secured oceans interests in the past, this does not imply its policy has
been optimal. Every FONOP the United States is forced to conduct is inherently a failure of less-than-
military means of achieving the desired outcome.378 FONOPS are demonstrations of U.S. power, but
without other tools to reinforce the outcome, they run the risk of becoming banal. As Thomas Jefferson
wrote, “I hope our wisdom will grow with our power, and teach us that the less we use our power the
greater it will be.”379

Third, FON is not an end in itself. It is a means to open oceans conducive to security and trade. To this
point, it is relevant that both security and industry experts endorse ratification.380

3. A Consistent and Coherent Legal Strategy

Ratification would allow the United States to maintain the beneficial status quo while avoiding the
paradox introduced by an overreliance on customary law.381 In most circumstances, the United States
favors the strict approach to identifying customary law382 because it tends to insulate the status quo
and benefit developed States.383 Indeed, the United States has traditionally argued for a strict
jurisprudence over the objections of developing States, which accuse the international legal order of
perpetuating Western imperialism.384

However, in the context of the law of the sea, the strict approach is less likely to protect U.S.
interests.385 Therefore, the United States must tacitly endorse a flexible jurisprudence.386 Of course
the irony is that the flexible approach enables more rapid development of customary law, including
developments inimical to U.S. interests,387 which in the end may be self-defeating.

To illustrate this dilemma, consider the ASEAN-China COC. Given China’s rising influence, especially its
position to shape the COC, it can marshal State practice and opinio juris to present plausible customary
norms and interpretations of the law to challenge those of the United States.388 This is particularly true
in novel areas of the law of the sea where a convergence of practice has yet to materialize. The flexible
approach that the United States would argue to assert that UNCLOS provisions have ascended as
custom would similarly open the door for China and like-minded States to assert that their divergent
practices have customary standing.389 This reliance on customary law creates instability to the U.S.
FON policy, but also jeopardizes other areas of international law which the United States relies on.
Prevailing in asserting its rights under customary law may in the end prove to be a Pyrrhic victory.

Effective navy solves conflicts – enables power projection, deterrence and critical
diplomatic functions.
Masters 24
[Jonathan Masters, 6-12-2024, "Sea Power: The U.S. Navy and Foreign Policy", Council on Foreign
Relations, https://www.cfr.org/backgrounder/sea-power-us-navy-and-foreign-policy] Julia T

What are the navy’s advantages? By its use of the sea, which covers nearly three-quarters of the earth, a
navy can do things that land-based forces cannot. It can provide extraordinary access to points of
interest around the globe, patrolling vital waterways and maneuvering to distant shores and population
centers. The United States is a maritime superpower because its heavily armed warships can travel
thousands of miles in a matter of days and linger at locations without imposing on another country’s
sovereignty and, if desired, without provoking much attention. This makes the navy an incredibly
powerful tool, especially for responding to international crises. At the same time, the navy’s superior lift
capability, the ability to transport equipment and personnel over long distances, allows for the delivery
of firepower, fuel, food, and other cargo needed to sustain distant combat operations. “The crucial
enabler for America’s ability to project its military power for the past six decades has been its almost
complete control over the global commons,” wrote U.S. Joint Forces Command in a 2010 strategy
document [PDF]. What is the navy’s role? The roles that a navy serves depend on its capabilities. The
United States is one of only a handful of countries that have a so-called blue-water navy, which can
operate across the open ocean. Others, constrained by geography or resources, can only maintain fleets
for coastal regions (green-water) or for rivers and estuaries (brown-water). The navy’s power is rooted
in its capacity to use or threaten force, but it also has significant diplomatic and constabulary functions.
In fulfilling these, the U.S. Navy regularly deploys with the Marine Corps, an amphibious assault force,
and the Coast Guard, which enforces maritime law and conducts search and rescue operations, among
other functions. These three naval services have several interrelated capabilities that they say constitute
U.S. sea power [PDF]: Forward presence. The navy deploys to various regions where the United States
has a strategic interest. This demonstrates a persistent, but not permanent, U.S. commitment.
Deterrence. It discourages adversaries from acting against the United States and its allies and partners.
For example, U.S. Navy ballistic-missile submarines serve as a leg of the nuclear triad, particularly valued
for their ability to hide and stay a credible threat during a potential nuclear conflict. Sea control. It
exercises control over the sea, at least in certain areas for certain lengths of time. Sea control provides a
freedom of action that is required for the pursuit of other objectives, such as shipping protection,
military sealift—which includes using cargo ships to deploy military assets—and blockades. Power
projection. It can threaten or direct strikes—from ballistic-missile attacks to amphibious assaults—
against targets ashore for sustained periods. Maritime security. It protects seaborne commerce—some
90 percent of global trade travels by ship—and generally maintains order at sea. Operations include
counterpiracy, drug interdiction, environmental protection, and other law enforcement measures.
Humanitarian aid. It responds to natural and man-made disasters with medical, food, and logistical and
security assistance. For example, the U.S. military constructed a large pier several miles off the shore of
the Gaza Strip to allow cargo ships to offload humanitarian aid shipments for the enclave.

Independently, membership will boost diplomatic credibility to challenge revisionism

– military strength alone won’t solve.
Malaver 21
[Ensign Lara Malaver, U.S. Navy, June 2021, "It is Time for the United States to Ratify UNCLOS", U.S.
Naval Institute, https://www.usni.org/magazines/proceedings/2021/june/it-time-united-states-ratify-
unclos] Julia T

U.S. Military Position Since the convention was adopted in 1982, every Chairman of the Joint Chiefs of
Staff has supported its ratification.20 Although there were initial concerns regarding a threat to national
security, they were never grounded in evidence, and it has been argued by many that the treaty would
increase the capabilities of the U.S. Navy. The Navy Judge Advocate General supports UNCLOS, stating:
The Convention is in the national interest of the United States because it establishes stable maritime
zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage,
and archipelagic sea lanes passage rights; works against “jurisdictional creep” by preventing coastal
nations from expanding their own maritime zones; and reaffirms sovereign immunity of warships,
auxiliaries and government aircraft.21 This sentiment was echoed by then–Chairman of the Joint Chiefs
of Staff General Martin Dempsey, U.S. Army, in his 2012 statement before the Senate Committee on
Foreign Relations: “Joining the Convention would strengthen our ability to apply sea power. . . . It
reinforces the sovereign immunity of our warships as they conduct operations. . . . We currently rely on
customary international law and assert it through our physical presence.” Dempsey added that the U.S.
failure to ratify UNCLOS enables the disagreeable behavior of adversaries and thus allows a greater
possibility for escalation of regular military operations into more dire situations.22 The Heritage
Foundation, which was one of the most vocal groups in fighting the initial accession to UNCLOS, argues
that because the United States has remained a non-signatory for so long, there is no reason to change
now, and the state’s focus should primarily be on maintaining a superior navy to support its own
maritime bidding.23 However, this view ignores the power of diplomacy; as a nonmember of the treaty,
the United States has less influence over the ongoing ocean policy discussions of today. Joining the
convention would increase U.S. influence over the conversation now, and thus help to solidify U.S.
maritime policy and strengthen influence abroad. Nearly 40 years ago, the Reagan administration and
the U.S. Senate backed away from UNCLOS for reasons that made little sense then and none today.
Since then, a number of presidents, including Bill Clinton, George H. W. Bush, and Barack Obama, have
unsuccessfully lobbied for the Senate to ratify it. For the United States to retake its position as a global
leader, and for the U.S. Navy to be seen as a legitimate extension of that leadership, it is time for the
Senate to finally give its advice and consent to accede to UNCLOS. The Navy’s surface combatants
effectively project American power abroad and enforce freedom of the seas in routine freedom of
navigation operations. This mission has become especially significant in the wake of aggressive actions
and provoking claims at sea made by our adversaries abroad. However, exerting military strength is not
enough. The formal acceptance of UNCLOS by the United States will diplomatically support national
interests abroad, secure American influence in the maritime domain, and more proactively underpin the
efforts of the U.S. surface navy.

Absent legal UNCLOS standing, Russia and China make territorial grabs in the Arctic.
Malaver ’21 [Ensign Lara Malaver, U.S. Navy, June 2021, "It is Time for the United States to Ratify
UNCLOS", U.S. Naval Institute, https://www.usni.org/magazines/proceedings/2021/june/it-time-united-
states-ratify-unclos] Julia T
Combatting China and Russia The U.S. National Defense Strategy of 2018 focuses heavily on the need for
the United States to combat the influence of revisionist powers China and Russia, who have gained a
greater hold on the global stage in the past 20 years. As a non-signatory of UNCLOS, the United States
has hindered its influence over these two adversaries regarding the law of the sea, despite explicitly
recognizing the significance of each state’s growing power in strategic documents. The Arctic has
experienced unprecedented high temperatures in recent years and continues to melt, opening summer
navigation routes and making resources available that have not been easily accessible in the past.15
This, of course, has opened international discourse concerning which states have rights to what
resources in the Arctic. In the U.S. Senate’s Committee on Foreign Relations hearings in 2012, both
then–Secretary of State Hillary Clinton and Secretary of Defense Leo Panetta stressed the opportunities
that are waiting in the Arctic.16 While the United States is a member of the Arctic Council, it is the only
member that is not a signatory of UNCLOS, putting it at a disadvantage as the convention will have the
ultimate say on how resource and maritime claims are decided.17 Russia has already
attempted to claim much of the Arctic, sending its own submarines to the North Pole and
planting a flag on the ocean bottom as a symbol of its claim, which is widely disputed.18 When the
United States refutes such claims on the basis of international law, Russia and China point out that it has
no legal standing because it has not ratified UNCLOS. The cost of doing so is nonexistent, and the
reward is the ability to check Russia more effectively. In the South China Sea, a graver situation has
developed involving territorial conflict between China and at least five other nations. China began
making artificial islands in 2013, developing 3,200 acres of artificial landmass that it used to claim
additional airspace, territorial waters, and a larger exclusive economic zone (EEZ) that overlaps those of
other states who are party to UNCLOS. The United States has challenged China’s claims, again with the
aim of containing Beijing’s influence over South East Asia. Like Russia, however, China sees no reason to
respect the U.S. position because it is not a signatory of UNCLOS.19 Some may argue that a continuous
display of U.S. naval strength in China’s backyard (through freedom of navigation operations) is enough
to counter Chinese hegemony. But diplomatic power is just as important, especially because other
smaller and less powerful nations in the region need help that the United States is challenged to give as
an outsider to UNCLOS. In fact, one may argue that during the past 20 years, Washington has relied so
heavily on military strength that U.S. soft power has diminished. Being on the outside of the
international community has further emboldened revisionist powers such as China and Russia.

Arctic is primed for escalation right now. That ends in nuclear war.
Rayment ’24 [Sean Rayment, Sean Rayment is the Defence and Security Editor for National Security
News, best-selling author, broadcaster and award-winning defence and security journalist, 9-17-2024,
"Norway is rearming amid fears of a growing conflict in the Arctic," National Security News - Reporting
the facts on national security, https://nationalsecuritynews.com/2024/09/norway-is-rearming-amid-
fears-of-a-growing-conflict-in-the-arctic] William

Global warming is melting the Arctic four times faster than elsewhere on the planet, according to the
Norwegian minister. As a result, vast tracts of land are now being exposed with growing fears that the
landscape, rich in minerals, could become another flashpoint for global powers, she told a Royal
United Services Conference. She added: “Global warming is accelerating. The likelihood of conflict,
involving Norway, or our allies, has increased.”

The region was strategically important to many countries and increasingly to China. The state secretary
added: “We must therefore expect great power competition in this region.” The Arctic will
become more accessible due to rising temperatures and melting sea ice, “so we should expect more
civil and military activity to follow as a consequence”, she said. The consequences of climate change and
Russia’s war in Ukraine was already impacting geopolitics in the region. With its Black Sea Fleet
suffering significant losses and largely confined to port and its Baltic operations curtailed by Sweden and
Finland joining Nato, Moscow’s Northern Fleet based on the Kola Peninsula was now its prime maritime
force.

But the increased Arctic activity would elevate the risk of “misunderstanding, accidents and
unintended escalation”, Ms Aanerud warned. “Russia is now relying very heavily on a strategy of
nuclear deterrence, as it has suffered great conventional losses in Ukraine.” A “very significant amount”
of Russia’s nuclear capability is now based in the high north on the Kola Peninsula, close to the
Norwegian border, she said.

Formal ratification affirms credibility through allied commitment.

Butler 20
[Butler, Myles, M., USN 28-04-2020 “U.S. Accession to the United Nations Convention on the Law of the
Sea: Opportunity for Renewed American Leadership in the Era of Great Power Competition”
https://apps.dtic.mil/sti/trecms/pdf/AD1177539.pdf] Julia T ***FONOP = Freedom of Navigation
Operation

The U.S. continues to maintain its position that the South China Sea dispute should be resolved
“peacefully without the threat or use of force,”111 and rightfully so, however the overall tepid response
post-PCA ruling by the U.S. did little to encourage the Philippines to take a harder stance against
China.112 Although the U.S. has taken no official legal position on the disputes 23 themselves, Secretary
of State Mike Pompeo recently “reaffirmed our commitment to the Mutual Defense Treaty” in March
2019, which specifically assured the Philippines that “any armed attack” against them in the South China
Sea “will trigger mutual defense obligations under Article IV.”113 An invocation of Article IV that
acknowledges an attack as “common danger” to either party is further clarified in Article V which
recognizes that any such attack also includes “island territories under its jurisdiction in the Pacific.”114
Accession to UNCLOS would offer a supporting instrument in the U.S. reaffirmation of the Mutual
Defense Treaty and instill greater confidence in other ASEAN partners.

The U.S. did seek to send an observer to the PCA during the period of arbitration, however the Tribunal
decided that “only interested States parties to the United Nations Convention on the law of the Sea will
be admitted as observers.”115 The presence of a U.S. observer at the PCA may have ultimately been
seen as only a small gesture of support, but it does not diminish the significance of the fact that the U.S.
was refused a seat at the table as a non-party member of UNCLOS. This could set a precedent of
continued refusal of American involvement in UN proceedings regarding the law of the sea. This may
also result in an increase in the perception that the United States is no longer a credible participant in
the security of the maritime space.

China has taken this opportunity to seize the initiative in the information domain by highlighting the
hypocrisy in America’s challenge to their South China Sea claims as being invalid under international
law, given that China is party to UNCLOS and the U.S. is not. China’s Foreign Ministry Spokesperson, Lu
Kang, remarked in a press briefing following the PCA ruling that the “U.S. is always selective when it
comes to the application of international law…and keeps urging others to abide by UNCLOS while
refusing to ratify the Convention.”116 24 China is able to point to the U.S. as being the unreliable
partner that only seeks to escalate regional tensions, which undermines the ability for the U.S. to
enhance its credibility with other Asian partners. It is not difficult to find some truth in China’s criticisms
that the U.S. will “cite international law when it sees fit and discard it when it sees otherwise.”117
Declaring an adherence to customary international law as a substitute for UNCLOS is becoming more
irrelevant within an international community that recognizes a separate and distinct legal framework.
Simply conducting more FONOPs in the South China Sea is merely a monotonous repeat of a strategy
that needs a renewed approach, especially if the U.S. continues to be uninvited to venues like the PCA or
continues to refuse its unique position of advantage on the ISA Council. This is not to suggest that the
U.S. FONOP program should be abandoned, but rather messaged more effectively under the auspices of
the Convention.

Opponents argue that an increase in the number of FONOPs is all that is needed to protect freedom of
navigation, but they do not address what the strategy should be if the U.S. Navy is no longer able to
maintain its dominant presence across the world’s oceans. Budgetary constraints, operational
limitations, or the emergence of new threats could easily redistribute forces away from FONOP priority
areas for extended periods of time. If FONOPs are propped up as being the cornerstone of American
resolve on the high seas, then what message does it send if the U.S. Navy is unable to support an
increased FONOP tempo or becomes restricted in its ability to conduct them altogether? Equating
FONOP as the sole measure of American resolve to protect freedom of navigation is a precarious
strategy that offers no recourse if this resolve becomes seriously contested in the future.

Former commander of U.S. Pacific Fleet, Admiral Scott Swift, admits that “FONOPs tend to give a false
sense of meaningful action and do not represent the whole-of-government 25 approach necessary to
blunt the progress China has achieved.”118 Admiral Jonathan Greenert, former Chief of Naval
Operations, emphasizes the need for persistent U.S. engagement to counter China’s gray zone
operations.119 He summarizes this advice into three points: maintain presence to best know how to
shape the environment, engage with allies and “potential adversaries” alike, and form enduring
alliances. While Admiral Greenert’s remarks spoke more specifically to the use of military power, the
same can be said in the wielding of political or diplomatic power. FONOPs provide a tangible solution
that is overt in nature, but would UNCLOS not provide a similarly tangible, albeit more subtle, diplomatic
presence? This would align with Admiral Greenert’s second and third points of advice, that the U.S. must
always be willing to engage with both China and allies.

Although ratification now would not be near as impactful as it would have been in 2016 or early 2017,
there remains a significant strategic value to ratification given that the PCA ruling has established a
firmer precedent in challenging China’s claims. Despite ambiguities that may still exist in maritime law,
the PCA ruling is in alignment with U.S. national interest and has 26 given the U.S. an opportunity to take
a stronger position on the issue. If the U.S. can bolster ties with the Philippines and other ASEAN
countries through continued use of diplomatic, economic, and security cooperation then ratification of
UNCLOS would better reinforce U.S. strategy. It would also send a signal to other allies in the region
that the U.S. remains committed to upholding international maritime law as a participatory member of
UNCLOS. Stronger multilateral partnerships between the U.S. and ASEAN nations under the treaty will
undermine China’s strategy of engaging with nations bilaterally to more easily
bend them to its agenda.

Specifically, diplomatic credibility addresses threats to sea cables.

Gilbert and Bazilian ’24 [(Alex Gilbert, PhD student in space resources and a fellow at the Payne
Institute for Public Policy at the Colorado School of Mines and Director of Space and Planetary
Regulation at Zeno Power, Director of the Payne Institute and Professor of Public Policy at the Colorado
School of Mines with a PhD in energy analysis) “US ratification of the ocean treaty will unlock deep sea
mining, Atlantic Council, Apr 2 2024” https://www.atlanticcouncil.org/blogs/energysource/us-
ratification-of-the-ocean-treaty-will-unlock-deep-sea-mining/] hwkm

Ratifying UNCLOS would also bolster US diplomatic power. The Houthi campaign in the Red Sea is
disrupting 20 percent of global maritime trade. Multiple submarine telecommunications cables in the
Baltic Sea and Red Sea have been severed in the last year, threatening global internet connectivity. For
more than a decade, China has been violating the principles of the LOS with their actions in the South
China Sea and elsewhere. UNCLOS ratification would greatly strengthen US credibility in seeking
international coalitions to push back against these challenges.

Miscalculation is guaranteed – countries depend on communication.

Clark ’16 [(Bryan Clark, Senior Fellow and Director of the Center for Defense Concepts and Technology
at Hudson Institute with a masters in national security strrategy from U.S. National War College)
“Undersea cables and the future of submarine Competition, Bulletin of Atomic Scientists, Jun 15 2016”
https://www.tandfonline.com/doi/pdf/10.1080/00963402.2016.1195636] rct hwkm

Countries also depend on undersea cables for national security. Aside from their contribution to a
country’s economic health, nations rely on undersea cables to coordinate military operations, conduct
diplomatic missions, and collect intelligence. Radiofrequency circuits used by communications satellites
have too little bandwidth to accommodate the terabytes of sensor data recorded by various devices, or
to fill operational orders needed to support global military operations. For this reason, classified military
communications use the same network of submarine cables as civilian and unclassified data, making
them susceptible to eavesdropping taps, the likes of which the United States is reported to have
conducted on older copper communication cables during the Cold War.

Tapping today’s fiber-optic cables is theoretically possible, but it is easier to cut or damage them and
significantly impact the cables’ users. And while the exact location of cables is not publicly available,
improvements to “bottom survey” equipment and unmanned undersea vehicles are making finding
cables easier and faster. In time-sensitive military or diplomatic operations, the loss of
communications for a few minutes or hours can be catastrophic. With financial transactions, the loss of
even fractions of a second can cost millions of dollars as high-speed trades miss their targets and other
transactions fail to go through or are lost entirely. The dozens of cable outages that occur each year do
not cause a complete loss of service, but they do slow data-transfer speeds as information is re-routed
through fewer intact cables. Most of these cable breaks happen in relatively shallow water, when rough
weather moves cables around until they break or fishing trawlers catch a cable in a net. Some outages,
however, have more nefarious origins. In 2013, three divers with hand tools cut the main cable
connecting Egypt with Europe, reducing Egypt’s Internet bandwidth by 60%.

Repairing a submarine cable at sea is difficult and time consuming. First the break has to be located
using built-in monitoring systems that can indicate the cable segment in which the break is likely to have
occurred. Cable repair ships then must go to that location and pull up the cable until they get to the
damaged spot. A new section of cable can then be spliced in, which can take several days to complete.

In addition to the cables themselves, their onshore termination points are particularly vulnerable – and
easier to find than a submerged cable. Sometimes consisting of a non-descript building on a beach or
marshland, these locations are often the junction of several cables that are then connected with
terrestrial phone and cellular networks. An accident or attack on one of them could have the same
effect, in the short-term, of cutting multiple cables at once. Because they are easier to monitor, a break
at the termination point could be diagnosed more quickly; but it may be harder to repair because more
damage could be caused to an exposed cable than one hundreds of feet underwater.

As more cables are installed on the ocean floor, redundancy will increase the resilience of
communication networks. But as the case of Egypt shows, the reduction of bandwidth from cutting one
or more cables can still be significant. Although communications are not completely lost, lowered
bandwidth may have a similar effect on time-critical transmissions as a complete loss of connectivity. For
example, stock exchanges must be tightly synchronized for buyers and sellers to work off the same
prices. Similarly, military cryptology systems tie codes to time standards; if bandwidth goes down,
networks can “drop synch” and be unable to properly decode messages.

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.

Joining is critical to solve – boosts US credibility, dispute resolution, and cooperation

to challenge Chinese overreach
Feinman, December 2024 --- LL.M. Candidate, 2025, Université Paris-Panthéon-Assas; J.D. Candidate,
2025, Fordham University School of Law (December 2024, Dean Feinman, “LOST AT THE SOUTH CHINA
SEA: A LEGAL RATIONALE FOR JOINING UNCLOS,”
https://fordhamlawreview.org/wp-content/uploads/2024/11/Vol.-93_Dec_04_Feinman-945-991.pdf,
JMP))

***Note – COC = code of conduct, FON = freedom of navigation

B. Position the United States to Challenge Divergent Practices

Defense officials acknowledge that U.S. credibility is compromised since it is shut out of important
multilateral venues.390 This includes, of course, the ongoing COC negotiations. If concluded, the COC
would offer a competing interpretation of the law of the sea.391 Further, as a regional instrument, the
COC would hasten the creation of customary norms because of the SCS’s significance to global transit
and UNCLOS parties’ obligation to settle disputes through bilateral and regional means.392

For example, it is possible the COC will codify a coastal State’s right to require pre-authorization of
warships to transit the territorial sea.393 This provision will be binding on the SCS parties. Most other
States will likely acquiesce to the new norm so as to maintain friendly relations with China, a significant
regional power and trading partner.394 The United States, however, is uniquely positioned, not merely
because it can better afford the economic costs of challenging China, but because it offers an economic
alternative for allies to rally behind. However, such allies will remain hesitant if the United States’ only
means of mounting a challenge is through gunboat diplomacy.395 Without the legitimacy and stability
UNCLOS provides, the United States is at a marked disadvantage for building a coalition to challenge
divergent interpretations of the law.396

Ratification would not single-handedly interrupt the COC’s disruptive potential. But it would empower
the United States and its allies with the tools needed to confront Chinese overreach.397 In particular, it
would offer diplomatic avenues to avoid conflicts as well as peaceful dispute settlement mechanisms
to resolve them.398 But more important, it would allow the United States to present a unified front
along with its allies, backed by the authority of the law, with the real potential of prosecuting its
interpretation of the law of the sea on the international stage.

1. Stronger Relations with Regional Allies

Nonmembership impedes U.S. credibility.399 As Admiral John M. Richardson noted, “[W]e undermine
our leverage by not signing up to the same rule book by which we are asking other countries to
accept.”400 But ratification would do more than simply avoid diplomatic sanctimony;401 it would
overcome concrete challenges that stand in the way of building meaningful relationships with
international partners.402 At the same time, China continually cites U.S. nonmembership to dismiss U.S.
criticism off hand.403

Strategic and diplomatic experts note that U.S. nonmembership inhibits its ability to cooperate, even
with allies, in areas related to the law of the sea.404 Because the United States cannot operate within
the framework to challenge divergent behavior, its only practical recourse is FONOPS.405 This leaves
allies uneasy that they, not the United States, will bear the brunt of Chinese reprisals. The United States
can assume the risk and attendant costs of such disruptive measures, but many of its allies cannot.406
Thus, U.S. allies see U.S. nonmembership as a liability and as a condition more likely to disrupt and
frustrate regional stability than achieve strategic goals.407 Ratification would help accelerate the
convergence of State practice by assuaging these concerns and enabling more meaningful coalitions.
2. Access to International Courts

Ratification also provides useful tools to challenge divergent practices, most notably access to dispute
settlement mechanisms. The Part XV regime provides an efficient mechanism to enforce the law in its
current form.408 The lack of access to dispute fora frustrates the United States’ ability to weigh in when
adversaries challenge its or its allies’ interpretation of the law. For example, when the United States
asked to participate in the South China Sea Arbitration in support of the Philippines, the tribunal denied
Washington observer status.409 Similarly, throughout the 2018 Kirk Strait incident,410 the United
States was unable to mount a direct legal challenge in defense of Kyiv after Russia seized three Ukrainian
ships and their crew in violation of international law, even after the International Tribunal for the Law of
the Sea (ITLOS) voted 19–1 in a provisional order that Russia must return the ships and crews to
Ukrainian custody.411 Without access to international tribunals, the United States cannot obtain a
conclusive answer on the interpretation of the law, which is functionally the most decisive means of
both encouraging convergence of State practice and discouraging divergent practice.412

3. Reduce Tensions in the South China Sea

Ratification would lend the United States legitimacy and credibility in the maritime domain. Ratification
would signal U.S. seriousness in maintaining a robust FON policy while at the same time demonstrating
its commitment to peaceful, nonescalatory, and nonprovocative means of managing great power
competition, especially in the SCS where rising tensions have the potential of global implications.413
The U.S. Navy boasts impressive size, capability, and competence. But this does not make it the only, or
even the best, tool for effecting U.S. policy. As President Obama remarked, “Just because we have the
best hammer does not mean that every problem is a nail.”414 Defense experts continue to warn that
“the force of arms does not have to be and should not be our only national security instrument.”415
Further, FONOPS are deleterious to other avenues of resolution. They send confusing signals to allies
and adversaries alike. Most obviously, FONOPS place disputing vessels in close proximity, increasing the
potential for accidents, which are dangerous at sea but when coupled with the risk of escalation can
quickly become catastrophic.416 Ratifying the treaty would ensure that when the United States does
resort to FONOPS, the message is credible and clear.417

C. Shape the Future of the Law of the Sea

UNCLOS provides a single framework for shaping development of the law of the sea through both
settlement and amendment mechanisms.418 As new issues arise, the UNCLOS framework, and the
formal and informal channels between member States, will be the first place discussions take place. By
choosing not to participate in these discussions, the United States is closing the door on the opportunity
to shape the future of the law of the sea.419

The law of the sea, as well as the global oceans themselves, is under constant stress. Climate change, for
example, is opening new areas of the law, both physically and conceptually.420 UNCLOS is the only legal
framework to govern emerging disputes in the Arctic as melting icecaps expose navigable sea lanes;
however, the United States is the only Arctic State that has not ratified the treaty.421

Similarly, advancements in passive intelligence, surveillance, and reconnaissance (ISR) capabilities;422

the emergence of uncrewed maritime vehicles;423 shifting attitudes toward nuclear powered
vessels;424 and even high orbit satellites425 are all law of the sea challenges that have direct effect on
U.S. FON.426 By not being a member, the United States has abdicated its seat at the table where these
debates are taking place.

UNCLOS establishes a conceptual starting point for balancing the principles of freedom and sovereignty
to guide future development.427 This balance, however, is susceptible to erosion.428 U.S. ratification
would signal its commitment to the balance struck in UNCLOS and provide like-minded States the
diplomatic support to advocate for the same.

CONCLUSION

The reach of the modern law of the sea can be dizzying. It exists on a foundation of both customary
international law and conventional treaty law. It implicates everything from national security to trade,
fishing, energy, the environment, and individual enjoyment of the oceans. And it occupies a rare status
in international relations as practically all States recognize the clear benefit and need of legal
standardization.

If past is prologue, there is little doubt that the global oceans will continue to be a central arena of
great power competition—and the SCS will be its main stage. As powers vie for influence in the
SCS, as emerging technologies and geopolitical winds shift, and as the law develops to keep pace,
tensions will remain. In particular, as competing superpowers, the United States and China, maneuver
to entrench their visions of the rules governing the global oceans, their navies, diplomats, and proxies
will be placed in uncomfortably close quarters. To repurpose the proverbial sentiment, when great ships
play chicken the wake disrupts the sea. A single strategic miscalculation or tactical misstep
when navigating these tensions could lead to disastrous consequences. Getting it
right is important.

The U.S. position on the law of the sea stands on shaky legs. The United States cannot rely on customary
law to protect key U.S. FON provisions. Customary law is inherently indeterminate, volatile, and subject
to reinterpretation. Ratification bypasses these shortcomings by providing a firm legal foundation with
embedded dispute settlement mechanisms, which together offer stability, predictability, and a rule set
that is remarkably favorable to U.S. interests.

Of course, opponents raise valid concerns. Ratification would subject the United States to international
courts, but the benefits of having recourse to a court with the jurisdiction to peacefully settle disputes
has been undervalued. Far from being an abdication of congressional responsibility or a degradation of
U.S. sovereignty, ratification would amplify the voice of U.S. policymakers to shape the law and to
express and protect U.S. interests. Ratification would open the doors to important venues for U.S.
leadership, thereby augmenting, not undermining, sovereignty.

After all, given that the United States already abides by the treaty provisions, formal accession to the
treaty would signal to the world that U.S.-styled FON is and will continue to be the global norm.

In sum, global oceans challenges will continue to complicate U.S. interests and security. The law, the
world, and the sea are all rapidly changing. The question is, will the United States be positioned to
effectively cope? Although at one point ratifying UNCLOS may have threatened U.S. interests, the
strategic environment has shifted. Today, it is not ratifying that carries the greater risk.
 1AC – Mining
Advantage 2 is Mining.

Adversaries have a head start on deep-sea mining – only membership allows the US to
catch up and secure critical minerals
Gilbert and Bazilian ’24 [(Alex Gilbert, PhD student in space resources and a fellow at the Payne
Institute for Public Policy at the Colorado School of Mines and Director of Space and Planetary
Regulation at Zeno Power, Director of the Payne Institute and Professor of Public Policy at the Colorado
School of Mines with a PhD in energy analysis) “US ratification of the ocean treaty will unlock deep sea
mining, Atlantic Council, Apr 2 2024” https://www.atlanticcouncil.org/blogs/energysource/us-
ratification-of-the-ocean-treaty-will-unlock-deep-sea-mining/] hwkm

Hundreds of former political and military leaders are calling for the US Senate to ratify the UN
Convention on the Law of the Sea (UNCLOS), the impetus being to open up deep sea mining to supply
critical minerals needed for clean energy and military technologies. UNCLOS, adopted in 1982, is the
primary international treaty governing state activities in oceans, particularly in areas beyond national
jurisdiction that hold seabed minerals. Deep seabed resources include highly valued minerals such as
cobalt, nickel, and rare earths. Recent technological advances and new companies are making their
extraction economically feasible for the first time.

The United States has yet to ratify the UNCLOS due to historic opposition toward its international
regulation of seabed resources in the High Seas. This lack of participation bars US companies from
directly participating in what could be a significant new industry. It has already led to dominance of
deep sea exploration permits by geopolitical competitors—China and Russia have together won nine
permits, including in areas historically claimed by the United States. By ratifying the Law of the Sea
treaty, the United States can bolster critical mineral supply security, enter deep sea markets, and
enhance national security.

Governments and private industry have long worked to enable the extraction of minerals from the deep
seabed for a range of resources, including cobalt crusts, hydrothermal sulphides, and polymetallic
nodules. Of these, polymetallic nodules are the most sought after—ocean processes create these
billiard-ball-sized clumps of valuable metals. Ore grades in nodules significantly exceed those on land,
making their extraction both cost and emissions efficient. The largest collection of nodules is located in
an area called the Clarence Clipperton Zone (CCZ), which stretches the Eastern Pacific between Hawaii
and Mexico. Recent technological developments, particularly in remotely operated vehicles and
underwater vehicles, mean that deep sea resources are potentially economical today.

Reliable critical mineral supplies are increasingly important for the global economy and security. They
are needed to meet clean energy needs, including electricity infrastructure, electric vehicles, and
renewable energy. Many advanced technologies for defense applications, particularly electronics,
require stable and growing supplies of these rare minerals. China dominates extraction and processing
of most critical minerals, while the United States is a major importer for all minerals that deep sea
mining might supply.
Governance of deep sea mining depends on location. Under UNCLOS, seabed resources within exclusive
economic zones are governed by the relevant nation. Norway recently became the first country to
authorize mining of such resources in their jurisdiction, but most resources are outside such zones.
Resources in the remaining half of the ocean, called the High Seas, are governed by the International
Seabed Authority (ISA). Although the United States played an active role in negotiating UNCLOS and
considers most of it customary international law, it has not ratified the treaty due to Senate opposition
to the role of the ISA. Among other reasons, some senators historically opposed the ISA’s international
royalty mechanism, and expressed concerns about precedent for other domains like outer space.
Without ratification, the United States cannot directly participate in the ISA’s governing process, and
American companies cannot receive ISA mining permits.

These criticisms are not unfounded. The ISA has existed for decades and yet is struggling to establish a
governance framework. The small nation of Nauru is forcing the issue legally, and the ISA is close to
finalizing its mining permit system, without clear environmental protection. Global environmental
groups have called for a moratorium on deep sea mining until scientists can conduct more research on
environmental impacts.

Still, one of the primary objections (that an ISA-like royalty mechanism would be created for space
exploration) to ratifying the law of the sea is no longer valid. In the last decade, the United States and
many other countries have passed domestic legislation legalizing space mining without a space
equivalent to ISA. This approach has been legitimized by the multilateral US-led Artemis Accords, which
now has thirty-five signatories including all major space powers except China and Russia. The United
States has secured a governance pathway forward for space resources that does not repeat the
limitations of the ISA.

The letter calling for ratifying the Law of the Sea is the culmination of a growing bipartisan agreement
around securing critical minerals in the face of an ongoing trade war with China. A group of bipartisan
senators led by Senators Lisa Murkowski, Mazie Hirono, and Tim Kaine introduced a resolution explicitly
calling for ratification. Congress, in both informal letters and directed reports, is pushing for studies on
deep sea resources in US waters and the ability to establish domestic processing infrastructure. In late
2023, the US State Department initiated an extended continental shelf claim into the Arctic and Pacific
oceans, exerting jurisdiction over seabed mining for certain areas beyond its exclusive economic zone, a
practice explicitly outlined in UNCLOS. However, China and Russia have challenged this new assertion,
arguing at ISA that the US cannot make the claim because it has not signed UNCLOS.

Ratifying UNCLOS would also bolster US diplomatic power. The Houthi campaign in the Red Sea is
disrupting 20 percent of global maritime trade. Multiple submarine telecommunications cables in the
Baltic Sea and Red Sea have been severed in the last year, threatening global internet connectivity. For
more than a decade, China has been violating the principles of the LOS with their actions in the South
China Sea and elsewhere. UNCLOS ratification would greatly strengthen US credibility in seeking
international coalitions to push back against these challenges.

The future of deep sea mining remains uncertain. The burgeoning industry faces technical, economic,
regulatory, environmental, and political challenges. The abyssal plains of the deep seabed hold unique
biodiversity and are fragile, so mining activities must readily incorporate environmental best practices to
limit impacts and gain social license to operate. Nevertheless, its potential benefits to meeting critical
mineral supply are substantial, as are the geopolitical stakes of establishing a leadership position. The
urgency of securing critical mineral supply means the time is right for the United States to reconsider
its formal participation in UNCLOS.

The timeframe is short—China cements authoritarian rules in just a few months,

making conflict inevitable.
Bouffard ’24 [(Retired US Master Sergent and PhD candidate with a focus on Russian Arctic Defense
strategy and international law) “Strategic Competition and the Case for UNCLOS, Wilson Center, Jun 4
2024” https://www.wilsoncenter.org/blog-post/no-30-strategic-competition-and-case-unclos] hwkm

Much of the world’s supply of critical minerals exists on the seabed and below, estimated at 250 trillion
tons versus 13 trillion on land. In areas beyond national jurisdiction, the International Seabed Authority
(ISA) under UNCLOS maintains responsibility for seabed mining activities and administration, including
consideration of managing ecosystem compatibility. Critical minerals are defined by the Energy Act of
2020 as “a non-fuel mineral or mineral material essential to the economic or national security of the US
and which has a supply chain vulnerable to disruption”, including rare earth minerals. Current demand
for critical minerals is driven by several key material-based applications, including lithium-ion batteries
and electrical steel for EVs, compounded demand of rare-earth magnets for offshore wind technology,
grid power storage suppressed by lithium, nickel, and graphite supplies, silicon carbide-based power
electronics, and LED global lighting and Li-Fi momentum—all identified as leading forces in market
growth worldwide, just to name a few.

The ISA is currently developing Rules, Regulations, and Procedures (RRPs) for seabed mining
exploitation, due to be established in July 2025, involving a process where the United States is only
allowed to observe while China is steering efforts towards authoritarian-like results.
Moreover, Beijing is continuing efforts to displace US permit-based seabed mining sites in the Clarion-
Clipperton Zone, the world’s largest zone with 40% off limits in designated Areas of Particular
Environmental Interest, among other places. The US lack of membership to UNCLOS leaves Washington
at a competitive disadvantage, facing distracting and unnecessary legal vulnerabilities while being
outmaneuvered elsewhere on related efforts.

Critical minerals are the bedrock of current and future geo-economics as well as crucial technology R&D
and manufacturing directly involved with US national security priorities. Membership to UNCLOS
remains the easiest step to elevate US access and influence over this critical sector.

It's happening already. China has taken half of our mining sites.
Lu ’24 [(Christina Lu, reporter at Foreign Policy with a bachelor’s in economics and government)
“Washington Wants In on the Deep-Sea Mining Game, Foreign Policy, Mar 29 2024”
https://foreignpolicy.com/2024/03/29/us-deep-sea-mining-critical-minerals-china-unclos/] hwkm

And even if commercial mining operations do begin in international waters, Washington—which never
ratified the 1982 Law of the Sea Treaty over concerns that it would face too many deep-sea mining
restrictions—can’t take part in the scramble. Companies that want to mine in international waters have
to secure a state sponsor before applying for a mining license. Since the United States isn’t a party to
the treaty, it can’t sponsor license applications.

The issue flared in debates at the ISA’s latest negotiations, running from March 18 to March 29, when
both China and Russia argued that the United States’ lack of ratification nullified its claims to an
extended stretch of the seabed, the Financial Times reported. The U.S. delegation pushed back, but not
being a member, it only has observer status and thus less power.

The fact that the United States is not a party to the treaty “just means that we don’t participate at all,”
said Alex Gilbert, a researcher at the Colorado School of the Mines. “It doesn’t mean that we participate
on our terms, it just means that we’re excluded.”

Washington is facing pressure to change its position. Last November, U.S. Sens. Mazie Hirono, Lisa
Murkowski, and Tim Kaine reintroduced a resolution urging the U.S. Senate to ratify the Law of the Sea
Treaty. Hirono and Kaine are Democrats; Murkowski is a Republican. And earlier in March, nearly 350
former diplomats, officials, and military leaders, including former U.S. Secretary of State Hillary Clinton,
signed a letter to the Senate Committee on Foreign Relations in which they echoed the senators’ calls.

“We have already lost two of our four ‘USA’ designated deep seabed mine sites,” which
contain “minerals critical both for United States security dominance as well as the transition to a
greener twenty-first Century,” the signers wrote. They added that “continued inaction on the
Treaty means a likely quick loss of our remaining two ‘USA’ designated sites,” while
China and Russia have obtained more sites.

One day after the letter was released, Republican Reps. Carol Miller of West Virginia and John Joyce of
Pennsylvania introduced a bill in the House, known as the “Responsible Use of Seafloor Resources Act,”
that would task the Commerce Department and White House Office of Science and Technology Policy
with producing reports on legislation related to seafloor mining as well as an analysis on the benefits of
importing the seafloor’s resources and then domestically processing them.

Ceding UNCLOS to authoritarian governance results in a litany of existential threats.

Singh ’22 [Anil Jai; 2022; Vice President, Indian Maritime Foundation, former Commodore, Indian
Navy, former instructor, College of Naval Warfare; Maritime Affairs: Journal of the National Maritime
Foundation of India, “UNCLOS: Facilitating Ocean governance and maritime security,” vol. 18, no. 1]

Regulation of the oceans, which cover over 70 per cent of the earth’s surface and are the lifeline of the
global economy is as much a necessity as a challenge. The maritime domain has, in many ways, shaped
the destiny of the world and has been instrumental in orchestrating the rise and fall of great powers.
From the time of the Peloponnesian War to the current emerging great power rivalry brewing in the
Indo-Pacific, domination of the oceans remains the key to global power. Cooperation is giving way to
competition and the global commons are under stress from multiple pressures and interests leading to
an unstable maritime environment. Hence, the importance of a robust regulatory mechanism and a
collective approach to ensure the security of the maritime domain needs little emphasis and is an
inescapable imperative in the uncertain world that we live in. The seas are regarded as the “common
heritage of mankind”, a term coined in 1967 by Arvid Pardo, the Maltese Ambassador to the United
Nations (UN), and therefore need to be regulated and controlled.1 While land borders divide, the seas
unite. Ever since man ventured into the high seas, they have been the maritime highways over which
commerce and energy have travelled across the globe. In this era of globalization, connectivity and trade
dependencies, which transcend cartographic geographies, this is happening more than ever before.
With the burgeoning global population and the rapid depletion of land resources, the seas are becoming
the source for the future sustenance and development of humankind. The seamless expanse of the
oceans therefore not only offers vast opportunities but also gives rise to numerous challenges in the
maritime domain with security being one of them. The wide spectrum of contemporary maritime
security challenges makes it impossible for any one nation to address these. A multilayered, multi-
dimensional and multinational approach to ensure adherence to an established inter- national rules-
based order and compliance with laid-down laws and conventions is therefore the key to protecting this
critical resource for the future. Maritime governance over the centuries has been driven by geopolitical power rivalry, economic imperatives, hegemonistic ambitions and various other factors
which have shaped both, cooperation and competition. However, the underlying conviction that the open seas are for everybody to use has endured. The contemporary maritime environment is governed by the 1982 United
Nations Convention on the Law of the Sea, which is in its third iteration (UNCLOS III) since it was first codified in 1958 under the aegis of the UN. UNCLOS primarily defines the extent of sovereign maritime boundaries while
respecting the principle of “mare liberum” which can be defined as “the sea is open to all nations”. This was first propagated by the famous Dutch lawyer Hugo Grotius in 1608, primarily to argue for the free and unhindered
passage of Dutch ships to the Dutch East Indies and to counter the influence of the Church to some extent.2 Historical perspective Grotius was challenged by an English lawyer John Selden, articulating mare clausum (1635), who
suggested that seas contiguous to the coastline of a country should be under the dominion of that country and were a reflection of his country’s views.3 Such arguments eventually led to the introduction of territorial waters.
However, it was the Grotian view that ultimately prevailed and became the basis for marine governance of that period. The first attempt at ownership of the sea was expressed by Cornelius van Bynkershoek, a Dutch lawyer who
believed that states should have a limited right to own and occupy some sea space and propagated the “cannon-shot rule”. In his view, ownership of the sea was possible only as far as “the cannon will carry”. This soon became the
accepted norm4 and became the basis for the three mile limit being legiti- mately accepted as the extent of the territorial sea. Limited ownership of the sea also suited the large maritime powers who, were thus able to dominate,
control, and travel over vast portions of the sea for trade and in pursuit of dominion. The nineteenth century witnessed a series of transformational events that altered the global approach to the maritime domain and continue to
influence the governance of the oceans even today. The opening of the Suez Canal in 1869 immediately reduced the navigable distance by almost 4,000 miles for ships travel- ling across the oceans. The regulations governing the
use of the Suez Canal were enshrined in the Constantinople Convention signed on October 29, 1888. Its Article 1 defined that it will always be free and open for navigation “without distinction of flag” in times of war and peace and
further stipulated that it “shall never be subjected to the exercise of the right of blockade”.5 In 1866, the first undersea cable was successfully laid between Ireland and Newfound- land. While protection of these cables was a
concern, which led to the 1884 Convention for the Protection of Submarine Cables6, the freedom to lay cables in the high seas was never questioned or challenged. It was during this period that curiosity about the maritime domain
led to the beginning of marine research. A converted Royal Navy corvette, HMS Challenger, undertook an expedition between 1872 and 1876. It covered over 68,000 miles and collected exten- sive data besides various types of
marine flora, fauna and objects which included ferro- manganic nodules. It discovered the Marianas Trench (26,850 feet deep), the Challenger Deep (37,800 feet and the deepest point of the ocean) and the rise in the middle of the
Atlantic Ocean, now called the Mid-Atlantic Ridge.7 Oceanographic research picked up pace and soon all major maritime powers began undertaking expeditions to unravel the mysteries of the deep. In the 1870s, the introduction
of steam powered fishing trawlers led to fishing far from home. While this did lead to concerns of overfishing, the majority view was that the abundance of fish in the ocean would preclude that from ever happening. Towards the
end of the nineteenth century, offshore oil exploration also made humble beginnings. The Industrial Revolution and the transition from sail to steam effected a remarkable transformation in the global maritime landscape and the
spirit of human endeavour began to have an impact on the oceans in many ways. This also led to greater effort at regulation and organisation of the maritime space. The sinking of the liners Lusitania and Athenia by German U-
boats in World Wars I and II, respectively, sent shock waves through the maritime community. Unrestricted submarine warfare – first by Germany against the Allied forces and later, by the United States (US) against Japan – had
rudely violated the freedom of the open sea. In 1930, the League of Nations Codification Conference was held at The Hague. It was unsuccessful in addressing the issue of territorial waters, except for certain draft articles that were
accepted by governments to a limited extent.8 These major developments in the maritime domain and the efforts to address the security and economic risks arising from them were addressed periodically, but regulation in this
domain continued to be inconsistent. The evolution of UNCLOS The requirement of a regulatory framework to govern the world’s oceans and establish a uniform limit of sovereign maritime boundaries towards mitigating the
occurrence of maritime territorial disputes as also to protecting and conserving the marine environ- ment was felt after World War II as nations began advancing their territorial claims further seawards from the commonly
accepted three-mile limit. In 1945, President Woodrow Wilson extended the US’s territorial sea rights up to the extent of its continental shelf. Many countries followed suit by fixing different limits; Chile, Ecuador and Peru declared
a 200-mile zone as their territorial sea to protect their fishing rights.9 Work on a uniform global framework began in 1949. The International Law Commis- sion prepared four draft conventions. This led to the First conference on
the Law of the Sea (UNCLOS I) being held in 1956, and resulted in four treaties being concluded at Geneva between February 24 and April 29, 1958. These were the Convention on Terri- torial Seas and Contiguous Zones, the
Convention on the Continental Shelf, the Conven- tion on the High Seas and the Convention on Fishing and Conservation of Living Resources on the High Seas. These ultimately came into force between September 30, 1962 and
March 20, 1966.10 However, there were still unresolved issues such as a decision on the maximum breadth of the sea. This could not be established even at the Second Conference (UNCLOS II) held at Geneva from March 17 to
April 26, 1960. Held over a duration of six weeks in the shadow of the bipolar Cold War world order, it did not result in any new agreements. The Third Conference (UNCLOS III) was held in New York. More than 160 countries
participated in the discussions, which continued from 1973 to 1982. The Convention was signed on December 10, 1982 at Montego Bay in Jamaica and finally came into force on November 16, 1994 after Guyana became the 60th
nation to ratify it. One hundred and sixty-eight parties comprising 164 UN member states and four others – Palestine (UN Observer State), the Cook Islands, Niue, and the European Union (EU) as a separate entity have now ratified
it. It is a completely binding document and comprises 17 parts, 320 articles and nine annexures and clearly defines maritime zones, namely, the baseline, the territorial waters, the contiguous zone, the exclusive economic zone
(EEZ), the continental shelf, the international seabed area, and archipelagic waters.11 The UNCLOS has been described variously as “the strongest comprehensive global environment treaty negotiated todate”12 but has also faced
criticism for not being effective enough. The world’s leading maritime power, the US has not ratified it: initially for its disagreement on deep seabed mining and subsequently, because of various reasons, including sovereignty
issues.13 China, on the other hand, has ratified it but pays scant attention to its provisions when its own interests are affected. Contradictions like these have an adverse impact on maritime security in both, territorial waters and
on the high seas. As per the Convention, states have the jurisdiction and are free to manage, develop and exploit all resources within the sea, the floor and the subsoil within their EEZ; this has led to 38 million nautical square miles
of ocean and about 87 per cent of all known hydro- carbon reserves coming under some sort of national jurisdiction.14 While UNCLOS has demarcated coastal waters with the rights and privileges of states clearly defined, similar
regulation governing the areas beyond national jurisdiction (ABNJ), which constitute 64 per cent of the world’s ocean space is presently inadequate for the conservation and sustainable use of this medium. Irresponsible
exploitation of the open seas is rarely checked even by flag states who not only often turn a blind eye towards their own agencies indulging in this but in a few cases even support it. The unchecked depredation of marine resources
and the destruction of biodiversity in the ABNJ because of the concept of open seas is a matter of concern and a maritime security chal- lenge. Open ocean governance has been addressed to some extent by the formation of the
International Seabed Authority (ISA) as a distinct institutional mechanism to deal with those maritime areas, which are not owned by states. However, the efficacy, or lack of it of the ISA highlights the difficulties of regulating the

Besides the ISA, UNCLOS has also led to the development of other
open oceans which have been described by some as “characterized by anarchy”.15

important conventions governing different aspects related to the oceans and maritime security,
including the International Tribunal for the Law of the Sea (ITLOS), the International Whaling
Commission, and the International Union for Conservation of Nature (IUCN), amongst others. Its
limitations notwithstanding, UNCLOS has been successful in ensuring adherence to a framework that
has stood the test of time in mitigating tensions over maritime spaces and improved the protective
environment for the conservation and responsible exploitation of marine resources. The preamble of
the Convention states its aim of settling “all issues relating to the law of the sea” and is “conscious that
the problems of ocean space are closely interrelated and need to be considered as a whole”.16 It also
takes into account that without compromising sovereignty, it will “promote the peaceful uses of the
seas and the oceans, the equitable and efficient utilization of their resources, the conservation of their
living resources, and the study, protection and preservation of the marine environment”.17 Hence, in a
nutshell, the UNCLOS provides an inclusive legal framework which respects sovereign waters while
encouraging a cooperative approach towards the exploi- tation of the oceans as a global common. As
the importance of the maritime domain increases and it increasingly becomes the source for future
global sustenance, so will the importance of UNCLOS for addressing the emerging competition and
contestation on, for, and from the sea. Changing nature of the maritime threat One of the objectives of
a universally accepted legal framework is to resolve tension amongst nations over maritime disputes
and to mitigate emerging security challenges. Ocean governance remains a serious challenge. Nations
continue to feud over control of their common waters with these disputes often leading to dangerous
brinkmanship and potential escalation. The nature of the maritime threat has also evolved over time
and is undergoing a distinct transition from the primacy of kinetic state-on-state conflict, which is the
raison d’être of navies the world over, towards a wider spectrum of challenges which threaten the
peaceful use of the sea. These threats extend across the strategic, operational, tactical and sub-
conventional domains thus requiring different prevention and response strategies. Concepts such as
gunboat diplomacy in less-than-war situations or the threat of blockades and other coercive measures
have given way to more contemporary hybrid warfare and grey zone tactics, which, as the very name
suggests is a nebulous state between war and peace with the potential to provoke an unintended
escalation. The term “maritime security” has itself undergone a paradigm shift and is no longer
restricted within the narrow confines of the commonly understood meaning of the word “security”. The
maritime domain is inextricably linked to national and international political, economic, legal and
societal issues each of which not only has an impact on maritime security but in the larger context, on
humankind as well. Tackling the emerging existential challenge posed by the effects of climate change
or developing a sustainable Blue Economy model are also intrinsic to ensuring maritime security.
Further, the current uncertainty in the global order and numerous trouble spots across the world have
resulted in a host of non-traditional and transnational security challenges in the maritime domain.
Undersea communication cables are under threat of being damaged by inimical forces; piracy and
armed robbery remains a live threat and rears its ugly head in different parts of the world on a regular
basis; insurgencies are spreading into the maritime domain with the lethality and intensity of the
attacks increasing by the day with the active involvement of state and state-supported elements. The
spectre of maritime terrorism is omnipresent; human rights at sea are often called into question; fishing
stocks the world over are depleting rapidly; the melting of glaciers and the polar ice cap is accelerating
global warming; the acidification of the oceans is on the rise; the effects of seabed mining on the fragile
marine ecosystem are yet to be fully understood and the quest for maritime domination is leading to a
competitive and confrontational maritime environment. The governance deficit in certain countries and
regions due to political instability, internecine conflict, internal insurgencies, separatist movements and
economic deprivation makes them vulnerable to exploitation by inimical external forces. These are
further exacerbated by the increasing frequency of natural disasters caused due to the effects of
climate change that render large sections of coastal communities destitute and robbed of livelihoods
besides the loss of life and property. Transnational dimension About 90 per cent of global trade transits
over the sea on more than 50,000 ships.18 The volume of global trade in 2020–21 was 10.6 billion
tonnes despite the slump caused by the COVID-19 pandemic.19 In 2020, 131 countries imported crude
oil worth more than US$ 709 billion,20 which travelled on huge tankers across geographies. In this age
of transcontinental connectivity, the economic fall-out of the COVID-19 pandemic exposed the
vulnerability of the global supply chains, thereby leading to a renewed thrust on ensuring their
resilience. Hence, the safety and security of the global sea lines of communication (SLOCs) and the
maintenance of good order at sea is critical to keep the wheels of the global economy rotating smoothly.
This will only be possible with a collective approach to maritime security. Perhaps the most recent and
prominent example of a successful collective approach to maritime security was the response to the
scourge of piracy off the coast of Somalia in the Horn of Africa. It took a coordinated approach by
powerful warships of more than 20 navies bristling with weapons and sensors, from all over the world,
almost four years to quell this menace that was posed by groups of young “pirates” brandishing AK-47s
and a sense of bravado travelling in small skiffs who were able to hold global trade to ransom. This was
obviously part of a larger political and economic mess created by a failed state with a severe governance
deficit, but containing it at sea required an effort that was grossly disproportionate to the menace. Such
is the nature of the asymmetric sub-conventional threat. Piracy is just one of many transnational
threats; the uncertain world we live in has many more. That many of these are state-sponsored makes
this even more disconcerting. While the threat of piracy is localised and tactical in nature, the more
insidious threat is one that comes from the strategic intent of nations seeking to reshape the existing
rules-based order and staking illegal hegemonistic claims to the global commons in pursuit of their
global ambitions. In the last two decades, China’s maritime belligerence in the East China Sea, its
territorial claim over approximately 80 per cent of the South China Sea enclosed within the Nine-Dash
Line based on some dubious historical claim, and its active support to all manner of illegal activity at sea
has raised regional con- cerns across the Indo-Pacific. China has reclaimed various features in the South
China Sea and is claiming these as islands inspite of many of these not conforming to the definition given
in UNCLOS.21 Also, despite reassurances to the contrary, it is actively militarising these islands with the
deployment of missile batteries and the frequent move- ment of military aircraft, all of which pose a
serious challenge to the freedom of the seas and a Free and Open Indo-Pacific (FOIP).22 Ironically, while
debunking the definition of these features in UNCLOS, China is invok- ing the same UNCLOS to stake its
claim to territorial waters and an EEZ around these fea- tures. This is not only aggravating China’s
maritime disputes with five of its maritime neighbours, but also undermining the delicate security
dynamic in the region and raising serious concerns about the future. Its grey zone tactics in the South
China Sea, with its sizable coast guard and large maritime militia of armed trawlers intimidating the
naval presence of its smaller maritime neighbours are also a serious cause for concern. In 2016, the
disdain with which China dismissed the award given by the Permanent Court of Arbitration (PCA) at the
Hague in favour of the Philippines in a maritime dispute between the two countries jolted the global
maritime community. The award denied China “historic” rights within the nine-dash line, and clearly
stated that there is no island in the Spratlys which enjoys an EEZ or a continental shelf. China neither
par- ticipated in the proceedings and nor did it appoint an arbitrator. This was well within its rights but
rejection of the award was not.23 As a permanent member of the United Nations Security Council
(UNSC) and having ratified the UNCLOS, China, instead of ensuring global adherence to UNCLOS, was in
open defiance of it.24 This was an unfor- tunate development as such actions have the potential to
undermine not only the UNCLOS, but the very essence of freedom of the seas. With the global geo-
economic and geopolitical centre of gravity shifting to the Indo- Pacific which is home to more than 60
per cent of the global population and generates more than 62 per cent of the global gross domestic
product (GDP),25 any threat to a Free and Open Indo-Pacific (FOIP) will have a considerable impact on
the global economy. This has led even Euro-centric nations like Germany and the Netherlands to
articulate their Indo-Pacific strategies, as have France and the United Kingdom (UK) who maintain a
permanent naval presence in the region. In addition, in view of the growing importance of the region,
the EU’s “Strategy for Cooperation in the Indo- Pacific” highlights the importance of engaging with the
region to “reinforce the inter- national rules-based order” and address global challenges, amongst its
other objectives.26 It covers a wide spectrum of activity, all of which are underpinned by collective and
coop- erative capacity building. With the Quadrilateral Security Dialogue (Quad) and other like- minded
nations in the region also supporting an FOIP, it is a good example of a cooperative approach towards
addressing the significant maritime security challenges that contravene not only specific clauses but the
very basis of the UNCLOS. It also reinforces the merits of a cooperative approach to mitigate the
potential of a contested environment from becoming a destabilising factor in maritime affairs.27 The
global nature of the maritime domain and the cross-linkages across the length and breadth of the
oceans brings into focus the impact of transnational threats, a few of which have been briefly
enumerated below. <<TEXT CONDENSED, NONE OMITTED>> Maritime terrorism Maritime terrorism is an omnipresent threat because the sheer audacity of an attack on or from the sea attracts global attention. The attack
on the USS Cole in October 2000,Footnote28 the Pakistan-supported Lashkar-e-Taiba’s attack on Mumbai on November 26, 2008,Footnote29 Al Qaeda’s attempts to hijack a Pakistan Navy warship in KarachiFootnote30 and numerous other incidents have exposed the vulnerability of the maritime domain, including porous coastlines, to terrorism. At the height of Somali piracy when
that country was falling apart, there was a very real possibility of the Al Shabab group linking up with the piracy networks to expand their web of terror into the maritime domain.Footnote31 Perhaps the first militant organisation with an organised marine wing was Sri Lanka’s Liberation Tigers of Tamil Eelam’s (LTTE) Sea Tigers who were a thorn in the flesh of the Sri Lankan Navy
through a 25-year civil war.Footnote32 While the LTTE may have been the first, it will definitely not be the last. Preventing maritime terrorism requires a very robust legal and constabulary framework. However, there has been little success on developing a global response mechanism. In the aftermath of the terrorist attacks in the US on September 11, 2001, the US government
announced the Container Security Initiative (CSI) and the Proliferation Security Initiative (PSI). The CSI, announced on January 1, 2002 is meant to prevent the possibility of a container being used by terrorists for carrying weapons. US Customs officials are positioned at foreign ports to screen containers bound for the country to detect any possible terrorist connection. Presently, 58
ports across the world prescreen over 80 per cent of containerised cargo headed for the USA.Footnote33 The PSI is an international initiative launched by the US on May 31, 2003 to prevent the movement of weapons of mass destruction and related materials through the maritime domain. Presently, 107 countries are a part of PSI, which includes interdiction of suspected cargo on
the high seas, information sharing and strengthening the legal framework to address interdiction and other related issues.Footnote34 While the CSI and PSI are good examples of a cooperative multinational approach to maritime security, they have failed to gain universal acceptance because of sovereignty concerns and the infringement on the freedom of the sea. Both have been
perceived as the US’s unilaterally driven initiatives without an endorsement by the UN, their claims to the contrary notwithstanding, and like many other aggressive Bush-era initiatives post 9/11, have not resonated favourably with many countries. Despite being at the forefront in supporting a rules-based international order and safe and secure seas, India has not signed on to either
of these two initiatives. On July 1, 2004, the International Maritime Organisation (IMO) introduced the International Ship and Port Facility Security (ISPS) Code under Safety of Life at Sea (SOLAS) Convention Chapter XI-2 . The objective was to create an international framework for the safety and security of ships, seafarers, ports, government agencies etc.Footnote35 The ISPS is a
comprehensive mechanism detailing the need for security and the means to achieve it. However, its implementation, though laid down in detail, is dependent on the commitment of individual countries and the availability of resources to do so. For instance, in India too, many of the non-major ports lack even basic security measures: hence vulnerabilities remain. Maritime terrorism
is a clear and present danger and the need to combat it is well understood. However, these initiatives notwithstanding, a greater sense of urgency and effort is required by individual countries to develop their own capacity to contribute meaningfully in a cooperative security framework. Illegal, unregulated and unreported (IUU) fishing Maritime tensions between states over fishing
rights and areas is not a new phenomenon. The Cod Wars, a series of stand-offs between the UK and Iceland over fishing rights during the Cold War years, is a relatively recent example and highlights the extent to which countries could go to protect their fishing rights. While the UK challenged Iceland’s claims and both countries projected their respective points of view, Iceland finally
prevailed because not only did its argument perhaps have greater legitimacy but also because it threatened to withdraw from the North Atlantic Treaty Organisation (NATO). Given Iceland’s strategic location and the intensity of the Cold War during those years this could simply not be allowed to happen.Footnote36 The freedom to fish is an important element of freedom of the seas.
However, powerful fishing fleets are exploiting the open oceans and pushing the legal envelope to protect their actions. With depleting fish stocks leading powerful fishing fleets further seawards, the problem of IUU fishing – a term first used in 1997 to include poaching in sovereign waters and unreported high seas fishing – is directly impacting the livelihood of large coastal
communities across the world. Small and poor countries that lack the capacity to surveil their EEZ effectively are the worst affected. In fact, IUU fishing has been flagged as an area of concern across most multilateral maritime security organisations. It requires a cooperative capacity-building approach with a robust legal framework, effective governance and a regional support
architecture backed by UNCLOS driven regulation to ensure non-military dispute resolution. In 2018, more than 90 million tonnes of fish was harvested by the industry, with about 4.6 million vessels engaged in fishing, and the sector generated employment for more than 39 million people.Footnote37 As per the Food and Agriculture Organization (FAO), IUU fishing accounts for 10–
19 per cent of the global catch.Footnote38 Unchecked fishing has led to over 65 per cent of high seas fish stock either depleted or at high risk of collapse.Footnote39 It is estimated that the annual economic loss to coastal states from IUU fishing is about US$ 50 billion.Footnote40 Control of sovereign waters IUU fishing is just one of many challenges faced by countries in securing
their 200 nautical mile EEZ around their coastline. It is a substantial oceanic space for seamless monitoring and surveillance even for large countries. Modern surveillance technologies through satellites and autonomous platforms have alleviated this limitation to a considerable extent. The compulsory installation of Automatic Identification System (AIS) transponders on all vessels of
more than 300 tonnes and/or 20 metres (m) in length has strengthened the regulatory regime as each vessel can now be tracked with its unique number. However, “dark ship” activities continue. Ships and fishing vessels switch off their AIS transponders for limited periods when indulging in clandestine/illegal activity like encroaching on another country’s EEZ to poach for fish. This is
not yet a significant threat but cannot be ignored. Status of the EEZ An ambiguity in UNCLOS about the status of the EEZ as territorial waters or the open sea has led states to interpret it differently with differences arising primarily over access to foreign military vessels. For example, India does not allow foreign military vessels or research vessels to operate in its EEZ without
permission. China’s dichotomous position on this is also well known. Countries with offshore islands or bays have included large open ocean spaces into their internal waters such as China’s claim on the North-west Passage. China has also stated that external research vessels require permission for research activities but believes that its own vessels should be routinely permitted.
Seeking prior information for research vessels is necessitated by security concerns of “research” being a euphemism for “spying”. These vessels can map the hydrographic contours of an area of interest towards enhancing their maritime and underwater domain awareness (MDA and UDA) which could greatly benefit their submarine operation. Seabed mining Deep-sea mining for the
extraction of mineral resources from the seabed in depths greater than 200 m which comprises 65 per cent of the oceans is going to be the next threat to the maritime habitat besides becoming a maritime security challenge. The turn towards the sea is inevitable with the rapid depletion of resources on land and the insatiable requirement of these to sustain humankind and feed the
technologies of the present and the future. This is another controversial area and one of the main reasons for the US’s initial reluctance to ratify UNCLOS. The ISA has been empowered to allocate up to 150,000 sq miles of open ocean for seabed mining and by May 2018, it had issued 29 contracts.Footnote41 It is understood that more than 1.5 million sq kilometres (km) of
international seabed in the Pacific and Indian Oceans and the Mid-Atlantic Ridge have been earmarked for this. India has been one of the beneficiaries; it was accorded a Pioneer Investor Status in 1987 and seabed mining rights in the Central Indian Ocean.Footnote42 Deep-sea mining is yet to pick up pace but when it does in a few years from now, it could spill over from these
demarcated areas and even lead to unregulated exploitation and encroachment in sovereign EEZs. International straits Unlike territorial waters, all vessels and aircraft have the right to transit through recognised international straits, including dived transit by submarines, so long as these do not threaten the bordering coastal state. This clause addresses the concern of major maritime
powers with “far seas” deployments for their normal global operations. However, there are security implications as transiting through these narrow straits restricts the freedom of movement of naval vessels and submarines thus providing a strategic advantage to those countries that straddle the approaches to these restricted waters. China considers its “Malacca Dilemma” a
strategic vulnerability and to mitigate this, it is making huge investments to connect its mainland directly to the Indian Ocean through Pakistan and Myanmar. The Iranian Navy frequently harasses US warships in the Straits of Hormuz.Footnote43 This is a serious concern as such provocation could lead to a dangerous escalation as an unintended consequence. This has led to initiatives
such as the Code for Unplanned Encounters at Sea (CUES), which was adopted in 2014 by all 21 members of the Western Pacific Naval Symposium (WPNS) and pertains to the western Pacific. Even though it does not address this particular aspect of transit through narrow straits, it is a useful cooperative mechanism to avoid unprovoked confrontation.Footnote44 Similar initiatives
are also being discussed in other forums like the Indian Ocean Naval Symposium and at various other track 1.5 interactions on maritime security in various parts of the world. Archipelagic states The maritime boundaries of the archipelagic states have been comprehensively described in Articles 47 and 49 of UNCLOS Footnote45 and several countries have benefited from the spread
of their islands over a large sea area. However, this has given rise to various security challenges as many of these countries are unable to effectively police such large areas, thus becoming vulnerable to all manner of illegal activity at sea which could have implications extending far beyond their maritime boundaries. An objective analysis of UNCLOS would therefore suggest that it has
satisfactorily addressed most of the issues that could be of major concern. However, differences between states continue to arise, mainly because of interpretation, intimidation, inadequate regulation and bilateral issues that affect the regional dynamic and give rise to larger security concerns. It is understood that a major negotiation is underway at the UN that will address some of
these concerns and both, expand and improve the governance architecture for better management of the oceans.Footnote46 Interpretation of UNCLOS – Freedom of Navigation Operations In 1979, the US administration initiated “Freedom of Navigation Operations” (FONOPs) insisting that a country’s military vessels had the right to operate within another’s EEZ and could take
innocent passage within the 12-mile territorial water limit.Footnote47 Since then the US Navy has been undertaking FONOPs across the world but these have now taken on a more aggressive connotation in the South China Sea. The US conducts frequent FONOPs in the disputed waters of the region as a constant reminder to China of its commitment to a FOIP in the wake of China’s
territorial claims in the region. China views it as an unnecessary provocation and challenges its legitimacy. This frequent brinkmanship has, at times, assumed dangerous proportions with confrontation a distinct possibility. In April 2021, in a move that surprised many, the US Navy announced that the USS John Paul Jones had undertaken a FONOP within India’s EEZ on its western
seaboard. The Government of India raised an objection in accordance with its own maritime law, which requires foreign warships to keep India informed, while the US insisted that its actions were “consistent with international law”. However, it finally turned out that this was not the first time the US Navy had done so and the issue was put on the backburner.Footnote48 Blockades
and exclusion zones Another potential challenge to the freedom of the high seas, as defined in UNCLOS, is trade warfare in an impending maritime military confrontation. Trade warfare was a very successful strategy during the two World Wars and shaped the course of both conflicts. However, in the contemporary maritime environment, with globalisation and connectivity
underpinning the complexity of the international trading system, disruption of trade due to armed provocation has global implications without necessarily achieving the desired effect. There have been many instances in the recent past where countries have established Maritime Exclusion Zones (MEZ) to deter other navies entering the area or to shape the battlespace to their
advantage. The UK had established an MEZ in the South Atlantic during the Falklands conflict in 1982, and later revised it to a Total Exclusion Zone (TEZ).Footnote49 In the current Russia-Ukraine conflict, Russia has declared am MEZ in the Sea of Azov and the Black Sea. As per common understanding, civilian ships and aircraft are exempt from the strictures placed on military
platforms entering the zone but they could become victims of collateral damage and so there is an implicit warning for them to stay clear of a conflict zone.Footnote50 Exclusion zones are indeed an effective tool for economic blockade. They can effectively sever a nation’s supply lines and block access to international trade for a restricted period of time thereby degrading the
enemy’s economic and war fighting capability and perhaps achieving the desired result without firing a shot. Maritime cooperation Maritime cooperation amongst states is an intrinsic necessity for effective maritime governance. UNCLOS has helped establish a framework for dispute resolution with its provisions providing a baseline for establishing convergences on shared concerns
and an enabling environment for detailed negotiation on bilateral and multilateral divergences in the maritime space. Global maritime governance is centred around the London based IMO, a specialised agency of the UN responsible for the safety and security of shipping and the prevention of marine and atmospheric pollution by ships with a membership of 175 countries. The IMO
was not only closely involved in addressing Somalian piracy but it also encouraged the creation of an International Maritime Bureau to tackle piracy and other criminal acts at sea. By the 1980s it had further refined its mission statement to promoting “safer shipping on cleaner oceans” and has helped facilitate limits on air pollution from oceangoing ships. An effective cooperative
effort to address the multitude of maritime security challenges is needed more than ever as the growing geopolitical tensions around the globe will have major implications on the conduct of nations at sea. Contestation on the high seas is an inevitability in the future with the Indo-Pacific and the Arctic region being the most likely to witness intense competition for resources and
control over important SLOCs. In the aftermath of the Cold War, a rare thaw in relations with Russia after the dissolution of the Soviet Union led to the formation of the “Arctic Council” on September 19, 1996 as an “international forum” for cooperation on common regional issues related to environmental protection and sustainable development.Footnote51 This was a positive
addition to ocean multilateralism. As the Arctic shipping routes led to increase in maritime traffic, it also led to further multilateral regulation. In 2014, the IMO began work on the “International Code for Ships Operating in Polar waters” (known as the Polar Code) that came into force on January 1, 2017.Footnote52 It was developed in conjunction with the regional countries towards
promoting the safety and security of international shipping in the harsh weather, challenging environmental conditions and unique eco-systems prevailing in the Arctic and the Antarctic. Indeed, the unique nature of the likely challenges has led the Polar Code to cover almost all aspects related to marine operations and navigation including ship design and construction, training and
operations, specialised equipment, search and rescue (SAR), etc. This code provides an effective mechanism to ensure uniformity in areas unique to that region. However, the proliferation of maritime traffic with the melting of the polar ice caps is likely to give rise to regulatory challenges in the future that will need timely action. An interesting departure from the concept of open
seas was the UNSC resolution authorising foreign naval forces to “enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea” (UNSC Resolution 1816 of June 2, 2008).Footnote53 It was considered necessary to tackle the menace of piracy that an ineffective, failed government in Somalia was unable to do. This set a precedent that a
coastal state’s rights could be taken from them, and also indicated that if the UNSC was in agreement, it could modify or suspend longtime legal doctrines. Similarly, in October 2015, the UNSC passed a resolution (2240, dated October 9, 2015) on the migration crisis, allowing countries the right to search and stop unflagged vessels suspected of smuggling migrants in the
Mediterranean;Footnote54 it extended this to include even flagged vessels with the permission of the flag state. These UNSC resolutions introduced a new dimension to the international management of high seas traffic amidst apprehensions of intrusive maritime governance, despite assurances that this was done due to exceptional circumstances. The criticism aside, these
measures, in conjunction with a cooperative and coordinated approach by the global maritime community have gone a long way in curbing the menace. Climate change Non-traditional threats are the more recent challenges to the safety, security and well-being of the maritime domain. Climate change is perhaps the single greatest threat to humankind. Its effects are already being
felt in the maritime domain with rising sea levels and the consequences of global warming posing an existential threat to sensitive marine eco-system, coastal communities and many small island states which are faced with the threat of inundation. Global warming and the marine environment Over 90 per cent of the excess heat due to greenhouse gases (GHG) has already been
absorbed by the oceans.Footnote55 Warmer water leads to displacement of species seeking cooler environments, increased stratification and acidification of the seas and consequent dissolution of organisms, all of which is further aggravated by the human interaction through fishing, mining, marine tourism, littering, etc. This added stress on the oceans will have an impact on the
global economy, coastal populations and will further add to the maritime security challenges. Despite it being one of the 17 Sustainable Development Goals (SDG)Footnote56, the larger and more developed states are paying less attention to the importance of sustainable exploitation of the oceans, the adverse effects of global warming, and the impending crisis that will follow than
the Small Island Developing States (SIDS), for many of whom their very existence is threatened. One of the two possible reasons put forward for the relative lack of attention being paid to the oceans is the difficulty in justifying the allocation of resources for activities beyond national boundaries. The second is that environmental agencies rather than those responsible for the oceans
have led most climate change initiatives. However, that hardly justifies this lackadaisical approach. The SDGs require a comprehensive all-of-nation approach if these are meant to be achieved by 2030, which at present seems very unlikely. From an UNCLOS perspective, global warming and the rise of sea levels will impact existing baselines and lead to the alteration of the maritime
limits from the territorial sea to the EEZ which will give rise to a new set of difficulties on demarcating fresh boundaries. The Intergovernmental Panel on Climate Change (IPCC) in its fifth assessment had predicted a worst-case rise of 1.1 m in the mean sea levels by 2100. However, most experts believe that this an overly conservative estimate and could, in fact be nearer a level of
about 2 m.Footnote57 Besides the impact of this on the marine eco-system, it will result in shrinking the landmass and maritime limits exercised by states. It will also change the characteristics and classification of small land features as defined in UNCLOS (Article 121), and will inevitably lead to maritime tensions as states find themselves deprived of the bounty that the oceans offer.
Similarly, this will also impact archipelagic (Article 47) and island states. While the marine environment is covered as SDG 14 (Life below water) with 10 targets, it is also impacted by many of the other 16 SDGs and 159 targetsFootnote58 and is therefore not the responsibility of the maritime agencies only. It may therefore be worthwhile to examine whether the Paris Agreement can
benefit from UNCLOS, and vice versa, towards enacting regulations to prevent unchecked degradation of the maritime space. Shipping Shipping is still the cleanest, quickest and most economical means of transportation. However, the large number of vessels plying on the seas also contribute to GHG emissions, which can be mitigated through regulation. Shipping must do its fair bit
for the conservation of the oceans towards meeting this long-term goal. Studies conducted by the IMO show that by 2050, even with enhanced energy efficiency, emissions from shipping could increase by 50 per cent to 250 per cent if action to control this is not initiated.Footnote59 For this, the IMO has developed an interim strategy (2018-2023) and a long-term strategy which will
commence in 2023.Footnote60 There is a considerable effort being made to address GHG emissions and marine pollution. A multi-layered legal and regulatory framework, the institutional backing of the IMO and the industry itself making a willing effort to comply bodes well for the future. An oversight mechanism like MARPOL Annex VI Footnote61,which can be adapted to address
the prevailing situation can provide the guidance. However, there is a possibility that economic and political constraints of nations and their competing requirements could lead to dilution with the bar being set rather low. UNCLOS provides the basis for addressing issues related to marine pollution in Article 1 (Definition) and Part XII (Protection and Preservation of the Marine
Environment) in conjunction with articles related to pollution from land etc. It offers the framework to develop legislative and regulatory provisions to address the larger issues related to the effects of climate change in the maritime domain. Regional cooperation as a way forward It is evident that protection of the maritime domain from the entire spectrum of challenges requires a
concerted cooperative approach with the larger issues of global sustenance taking priority over narrow parochial and inward-looking nationalist concerns. This is exacerbated by hegemonistic tendencies, a disdain for existing conventions and a belligerent approach towards disrupting the existing rules-based order. Most multilateral and regional institutional frameworks across the
globe now include maritime security in their agenda. In the Indian Ocean region itself, the Indian Ocean Rim Association (IORA) has included maritime security in its seven objectives. Similarly, the Asian Regional Forum (ARF), the ASEAN Defence Ministers Meeting Plus (ADMM+), Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC), and a host of
other such institutional mechanisms in other regions of the world are also committed to ensuring a safe marine environment. Similarly, ensuring a rules-based international order and an FOIP is the underlying objective of the Quad with its initiatives focused on building resilience and capacity in the region across multiple domains. Even though the Quad is only an informal grouping of
four nations with shared values, it is supported in its efforts by many other like-minded regional and extra-regional powers. Such cooperative regional formal and informal arrangements exist across the globe and should be strengthened by effective legislation and adequate constabulary capability. The global shift towards multilateralism and multi-polarity also provides an effective
checks-and-balances system India has been at the forefront in advancing cooperative and inclusive capacity building in the Indo-Pacific region. Its “Security and Growth for All in the Region” (SAGAR) doctrine, enunciated in 2015, is aimed at developing a resilient framework towards addressing the regional security challenges with sustainable development and Blue Economy
initiatives and providing a comprehensive maritime-centric regional security architecture. It also includes developing a robust maritime domain awareness capability based on effective multi-dimensional surveillance and an effective information sharing mechanism. Another recent initiative by the country is the Indo-Pacific Oceans Initiative (IPOI) which was proposed by India at the
East Asia Summit in November 2019.Footnote62 This was followed by India hosting the Fourth East Asia Summit on Maritime Security Cooperation at Chennai on February 6-7, 2020. The IPOI’s seven objectives aim to bring the region together on a host of maritime related issues related to maritime security, the marine environment and multi-sectoral capacity building. These are just
a few illustrative examples to emphasise the importance of a cooperative and inclusive approach towards enhancing multi-sectoral maritime security. While these pertain to the Indo-Pacific, other regions are also working towards achieving a well-regulated marine environment with all stakeholders doing their bit to protect and secure the oceans. Conclusion

<<PARAGRAPH BREAKS CONTINUE>> The freedom of the seas can be either the single most unifying
factor or the greatest disruptor in global affairs. Powerful maritime forces have always used the seas to
further their own interests whether in pursuit of flag or trade. This is unlikely to change in the future but
their dominating presence and inherent ability to shape the outcomes should be used to advantage for
creating a safer and sustainable maritime environment for the future of humankind. UNCLOS, often
referred to as the constitution of the oceans, provides a normative framework for international legal
governance of the oceans.63 It has been fairly effective in providing the basis for developing regional
strat- egies and responses to emerging maritime security challenges and bids by states to alter the
status quo. On occasions, these attempts have bordered on the ridiculous, such as Russia planting its
flag on the seabed in the Arctic in 2007 and more recently, China’s “historical” maritime claims on large
parts of the Western Pacific and its features. However, these should not be dismissed outright as these
usually harbour a latent and sinister intent. Had China’s reclamation activities in the South China Sea
been nipped in the bud in the last two decades, its brazenness in the region may have been curbed. The
challenge to the maritime domain is going to intensify as nations turn increasingly to the sea for their
sustenance. Contestation and cooperation in this domain will often be at conflict. Brinkmanship by
navies and other maritime forces could lead to unintended consequences and unwarranted escalation.
To ensure peaceful resolution and a cooperative approach, UNCLOS and its related legal and regulatory
mechanisms will have to be agile and robust to provide the basis for cooperative regional mechanisms
to be effective.

Chinese dominance over REMs emboldens them, decks U.S. readiness, and projects
weakness.
Wischer ’24 [(Gregory Wischer, master’s in security studies and international relations from
Georgetown University) “The U.S. Military and NATO Face Serious Risks of Mineral Shortages, Carnegie
Endowment for International Peace, Feb 12 2024”
https://carnegieendowment.org/research/2024/02/the-us-military-and-nato-face-serious-risks-of-
mineral-shortages?lang=en] hwkm

Critical minerals undergird great power competition and war. These nonfuel minerals and mineral
materials are vital to countries’ defense industrial bases, enabling the production of military platforms
like tanks as well as munitions and artillery shells. Therefore, mineral supplies can help sustain military
power, while mineral shortages can severely undermine it. For example, the Allied powers’ control of
most of the world’s minerals before World War II proved instrumental in their eventual victory over the
Axis powers.

Minerals remain important for military power today. Iron is used in steel, which is necessary for military
components like ship hulls and tank armor. Copper is commonly used in munitions such as bullets and
artillery shells. And lithium and other minerals have gained further relevance due to their use in new
energy technologies, like high-capacity batteries. The U.S. Army aims to field an entirely electric non-
tactical light-duty vehicle fleet by 2027, and the army’s climate strategy emphasizes installing battery
storage systems and generating renewable electricity on its bases.

Yet, the importance of these minerals also makes them a dangerous vulnerability if their supply chains
are not secure—and unfortunately, the U.S. and other NATO militaries rely on defense industrial bases
with vulnerable mineral supply chains. Given their limited domestic mineral production, both the
United States and Europe depend heavily on mineral imports, including from rival powers like China,
which supplies minerals such as graphite, rare earth elements, and other battery minerals, and Russia,
which provides aluminum, nickel, and titanium. In June 2023, NATO Secretary General Jens Stoltenberg
warned the alliance to avoid becoming overdependent on Chinese minerals, just as many NATO
countries previously became overdependent on Russian gas. Additionally, the U.S. government holds
limited mineral inventories in its National Defense Stockpile, while the European Union (EU) has walked
back its plans to develop a centralized mineral stockpile.

Mineral supply chain risks are rising as the adoption of renewable energy technology increases mineral
demand and as the rearmament efforts of the U.S. and allied militaries in support of Ukraine use more
minerals. Coupled with limited production and stockpiles, the U.S. and other NATO militaries face three
serious risks that could lead to mineral shortages: foreign export controls; rising military demand amid
great power competition, including the possibility of a U.S.-China conflict; and disrupted sea-lanes. The
United States and other NATO countries must act now to address these supply chain risks.

The Role of Minerals in World War II

The present mineral vulnerability of the United States and NATO contrasts with U.S. mineral dominance
in a different period of great power competition: before and during World War II. According to geologist
Charles K. Leith, the United States was “the world’s greatest owner, producer, seller and consumer of
minerals” in 1938, controlling major mineral resources across Canada, Central America, and South
America. Notably, the United States and the British Empire together controlled about 75 percent of
global mineral supplies. The United States did, however, lack a substantial mineral stockpile before the
war, although the 1939 Strategic and Critical Materials Stock Piling Act formally established a stockpiling
plan with funding. Regardless, the United States in this period was a mineral powerhouse.

Despite the United States’ strong mineral position, the U.S. military experienced supply constraints
before and during the war. First, the country faced export controls that reduced its access to foreign
minerals. Before the war, for instance, Germany placed export restrictions on certain mineral products,
such as copper sulfate. Interestingly, the United States also faced export controls from its geopolitical
partners. In October 1940, Canada instituted a copper export ban that applied to the United States,
except under certain conditions, like U.S. entities fulfilling munitions contracts for Allied countries.

At the same time, soaring military demand caused mineral shortages as production failed to keep pace
with requirements. Amid the U.S. military buildup from 1940 to 1941, aluminum production, which was
important for manufacturing aircraft, increased by 50 percent, but it still failed to meet the demand
from planned aircraft manufacturing output. After the United States entered the war, increased
manufacturing of bullets and artillery shells caused supply issues for copper, while heightened defense
production overall triggered shortages of manganese, nickel, tin, and zinc.

During the war, U.S. mineral imports also faced disruption from contested sea-lanes. Axis submarine
warfare impacted U.S. mineral imports from Asia, the Caribbean, and South America. For example,
submarines sank South American bauxite cargoes headed to U.S. aluminum plants. Mineral imports
from the western hemisphere that had previously been “considered reasonably safe, even in war,” as
the U.S. Bureau of Mines’ Elmer W. Pehrson noted, were threatened. Despite the submarine threat,
large volumes of minerals could still be imported, but those imports—along with domestic production—
were insufficient to meet demand.

Similar Mineral Risks Today, but From a Weaker Position

Compared with the strong mineral position of the United States and its partners in great power
competition before and during World War II, the U.S. military and NATO are in a far weaker position
today (see figure 1).

The United States today relies on a greater share of mineral imports to meet domestic consumption,
indicating a relative decline in U.S. mineral production compared with consumption. For some minerals,
U.S. production has even stopped completely. The U.S. supply of niobium, which is used in steel and
superalloys, “has been a concern during every national military emergency since World War I,”
according to the U.S. Geological Survey, but the element has not been mined in the United States since
1959.

Mineral inventories in the U.S. National Defense Stockpile have also dwindled since the 1950s, hindering
the stockpile’s ability to fully satisfy mineral demand for key U.S. sectors during a potential national
emergency, such as a U.S.-China conflict. As of March 2023, the value of stockpile inventories was
$912.3 million, just 1.2 percent of the stockpile’s 1962 value of approximately $77.1 billion (adjusted for
inflation). In 2023, the Department of Defense estimated that the U.S. military in “base case” national
emergency scenarios, such as a large-scale conventional U.S.-China conflict, would have shortfalls in
sixty-nine materials. The current stockpile would cover only about 40 percent of the military’s projected
shortfalls in a one-year conflict followed by three years of recovery and replenishment.

Other NATO countries and partners have limited mineral production and stockpiles, too. The EU imports
between 75 and 100 percent of most metals it consumes, and neither the union nor its member states
have mineral stockpiles—though the EU is now facilitating the joint purchasing of minerals by interested
firms and member-states. Canada also does not have such a stockpile, and the United Kingdom
discontinued its facility in 1984. The risks of limited—or nonexistent—strategic stockpiles became
apparent during the 2021 global energy crisis, when the United Kingdom had enough natural gas stored
to last only four to five winter days. For NATO countries generally, the situation is no better for the
minerals critical for their militaries.

Today, the United States and its partners face risks to their critical mineral supply chains just as their
militaries’ mineral demand is rising. These risks pose greater consequences now , as compared to
before and during World War II, given NATO countries’ weaker mineral positions and China’s mineral
dominance. The three main risks could lead to mineral shortages: foreign export controls; rising military
demand amid great power competition, including a possible U.S.-China conflict; and disrupted sea-lanes.

First, foreign export controls are an urgent concern. China imposed a de facto ban on exporting graphite
to Sweden in 2021 and placed restrictions on exporting gallium, germanium, and graphite to all
countries in late 2023. Most U.S. imports of these minerals come from China, and Chinese gallium and
germanium exports have indeed fallen significantly. In December 2023, Beijing banned the export of
technology for making rare earth magnets. Conceivably, China could impose export controls on other
minerals that the United States and other NATO countries import from China, like bismuth, tantalum,
and rare earth elements.

Other countries, such as Russia, could also impose export controls that would impact NATO members’
mineral imports. A 2023 report by the Organisation for Economic Co-operation and Development found
that Argentina, China, India, Kazakhstan, Russia, and Vietnam imposed the most new export restrictions
on critical raw materials from 2009 to 2020. Throughout the Russia-Ukraine war, Russia has imposed
export bans on a variety of mineral products, too, including, most recently, precious metal waste and
scrap.

The second risk stems from increased allied production of defense platforms and munitions that contain
minerals. This increased production is largely to replenish stocks of depleted matériel sent to support
Ukraine in the Russia-Ukraine war. A 2023 report from the Hague Centre for Strategic Studies found that
European countries face high or very high supply risks for several critical minerals with military
applications, including aluminum, beryllium, chromium, copper, and natural graphite for towed artillery,
which Ukraine heavily relies on.

The United States faces similar mineral shortage risks from its efforts to supply Ukraine militarily. The
United States produced 28,000 155-millimeter artillery shells, which are made of various minerals, per
month in 2023 but expects to produce 100,000 shells per month by the end of 2025. While the U.S.
military has not released recent mineral consumption figures, previous periods of heightened U.S.
military production increased mineral demand. During U.S. military mobilization in 1941, for instance,
Pehrson wrote that U.S. mineral consumption “exceeded all previous records” and “reflected the rapid
rate at which the United States was mobilizing for war.”

In a possible U.S.-China conflict, the United States and other NATO countries would face increased risks
of mineral shortages, too. In war games simulating a U.S.-China conflict over Taiwan, the Center for
Strategic and International Studies found that the U.S. military used 5,000 long-range missiles in the first
three weeks of combat, which would increase demand for minerals used in missiles, such as steel alloys.
While projecting mineral consumption in a U.S.-China conflict is difficult given limited open-source
information on the material composition of defense platforms and munitions, the high rates of matériel
attrition in the Russia-Ukraine war demonstrate how wartime demands often exceed expectations and
available supply.

Third, increased tensions and possible conflict in the Taiwan Strait would disrupt sea-lanes that
transport minerals from East Asia—a region from which the United States and other NATO countries
import many minerals. Japan, which faced Chinese export controls on rare earth elements in 2010 after
a collision between a Chinese fishing vessel and Japanese Coast Guard vessels, and South Korea are
major mineral producers and maintain large stockpiles, yet the United States and NATO would struggle
to access these resources if conflict broke out in East Asia. Australia and Canada are also major mineral
producers, but they do not maintain critical mineral stock-piles. Like Japan and South Korea, Australia’s
supply routes to the United States and other NATO countries could face disruption in a conflict
encompassing the South China Sea. For the U.S. military, Canada is the only major mineral producer with
a largely secure supply route to the United States.
Policy Recommendations The U.S. government is taking steps to address risks to its mineral supply chains. The Department of Defense is seeking to increase U.S. mineral production by financially supporting domestic mineral producers, and Congress is authorizing and appropriating funds for new material acquisitions for the National Defense Stockpile. Furthermore, the National Defense Authorization Act for Fiscal Year 2024 directed the secretary of defense to secure critical minerals from “reliable sources” like Australia, and it added Australia and the United Kingdom to
the list of countries eligible to receive priority funds for critical mineral projects, for example through the Defense Production Act. But the United States and other NATO countries must do more. To begin, they should increase their mineral stockpiles, prioritizing minerals used by their militaries. For instance, bismuth is used in U.S. defense systems, but the U.S. government does not stockpile it. The United States and other NATO countries should stockpile minerals by procuring domestically produced minerals where reserves exist, to help facilitate domestic production.
They should also consider prepaying for these minerals to help fund prospective mineral projects. The U.S. government and its allies could potentially fund these stockpiles through higher tariffs on imported minerals from China and Russia. In fact, a study group of U.S. mineral experts after World War I proposed tariffs to fund a U.S. antimony stockpile. The United States and other NATO countries should also expand their efforts to increase domestic mining and recycling of minerals. The U.S. government has accelerated its critical mineral efforts through the Department of
Defense and the Department of Energy, and it should continue its efforts with financial support for building new domestic mines, smelters, and refineries as well as expanding existing facilities and restarting idled ones. Mineral projects require significant upfront capital to build, take years to generate cash flow, and face environmental, social, and governance risks—all of which dissuade companies from investing millions, and potentially billions, in such projects. Consequently, the U.S. and allied governments could fill a private sector gap by providing capital to these
projects. The U.S. mineral industry also faces regulatory challenges and limited technical expertise, which could be partly addressed by statutory classification to prioritize critical minerals development on federal lands and increased funding for existing and new university programs in mining and mineral processing. The U.S. government and other NATO countries should consider friendshoring production for minerals with limited domestic reserves, such as bismuth. Friendshoring is the process of relocating critical supply chains among geopolitical partners, and doing so
would help reduce shortage risks for the minerals in question. The U.S. government and its partners are already pursuing mineral friendshoring initiatives, such as the Minerals Security Partnership, the Partnership for Global Infrastructure and Investment, and various bilateral agreements with countries including Australia, Japan, the Democratic Republic of the Congo, Zambia, and Canada. The success of these initiatives remains to be seen. However, such international efforts prove challenging during great power competition, as many countries seek to increase mineral
production domestically and decrease their mineral imports for economic and geopolitical reasons. In any case, the United States and other NATO countries should prioritize friendshoring with countries with the greatest supply chain resilience. To illustrate, the United States should focus on partnering with countries that have overland routes to the United States; thus, lithium could be sourced from Argentina or Chile instead of Australia. The most secure friendshoring partner for the United States is Canada, which was a vital source of critical minerals during World War II.
Today, however, Canada does not have the scope or scale of mineral reserves to completely satisfy U.S. demand. In a possible U.S.-China conflict, overcoming mineral shortages may demand more than simply increasing available supply. The United States and other NATO countries should therefore consider mineral substitution and rationing to alleviate the pressure on the production of certain minerals. For example, depleted uranium can be substituted for alloyed steel in the production of 120-millimeter tank projectiles without a significant decrease in their
effectiveness. In the case of a supply strain, the government could require defense contractors to replace alloyed steel with depleted uranium in that munitions class. During World War II, the U.S. military temporarily replaced brass—a copper-zinc alloy—with steel in cartridge cases; without such a substitution, the U.S. Navy said, it “probably would have been virtually impossible to wage a modern war with the supplies of copper . . . then available in this country.”

The history of the twentieth century suggests that absent such actions to strengthen mineral supply
chains, the United States and NATO could be ill prepared for a world more reliant on batteries and
renewable energy technologies—let alone a conflict with the world’s mineral superpower, China.

That greenlights global revisionism. Perceived weakness causes World War 3.

Ignatieff, 3/5/2024 --- Professor of History and Rector Emeritus of Central European University in
Vienna (Mar 5, 2024, MICHAEL IGNATIEFF, “The Threat to American Hegemony Is Real,”
https://archive.ph/L0FiP))

In addition to its internal struggles, the Western alliance now faces an “axis of resistance” – centered
around Russia and China – that might be tempted to threaten its hegemony with a simultaneous,
coordinated challenge. Like sharks, they undoubtedly smell blood in the water.

VIENNA – Ukraine has about a month before it runs out of artillery shells, and the US Congress cannot
agree to ship more. Russian opposition leader Alexei Navalny is dead. The slaughter in Gaza continues
with no end in sight. The Yemeni Houthis are attacking ships in the Red Sea. The North Koreans are
testing intercontinental ballistic missiles. In normal times, pessimism can look like an intellectual fad. In
times like these, it becomes a starker form of realism.
The post-1945 world order – written into international law, ratified by the United Nations, and kept in
place by the balance of nuclear terror among major powers – is hanging by a thread. The United States
is divided against itself and stretched to the limits of its capabilities. Europe is waking up to the
possibility that, come November, America may no longer fulfill its collective-defense obligations under
Article 5 of the NATO treaty. Faced with this new uncertainty, Europe is cranking up its defense
production, and European politicians are screwing up the courage to persuade their electorates that
they will need to ante up 2% of their GDP to guarantee their own safety.

The Western alliance doesn’t just face the challenge of doubling down on defense while maintaining
unity across the Atlantic. It also now faces an “axis of resistance” that might be tempted to threaten
Western hegemony with a simultaneous, coordinated challenge. The lynchpin of this axis is the Russia-
China “no-limits” partnership. While the Chinese supply the Russians with advanced circuitry for their
weapons systems, Russian President Vladimir Putin ships them cheap oil. Together they have imposed
autocratic rule over most of Eurasia.

If Ukraine’s exhausted defenders are forced to concede Russian sovereignty over Crimea and the
Donbas region, the Eurasian axis of dictators will have succeeded in changing a European land frontier
by force. Achieving this will threaten every state on the edge of Eurasia: Taiwan, the Baltic countries,
and even Poland. Both dictatorial regimes will use their vetoes on the UN Security Council to ratify
conquest, effectively consigning the UN Charter to history’s dustbin.

This partnership of dictators works in tandem with a cluster of rights-abusing renegades, led by Iran and
North Korea. The North Koreans provide Putin with artillery shells while plotting to invade the rest of
their peninsula. The Iranians manufacture the drones that terrorize Ukrainians in their trenches.
Meanwhile, Iran’s proxies – Hamas, Hezbollah, and the Houthis – are helping Russia and China by tying
down America and Israel.

Unless the US can force Israel into a long-term ceasefire, it will find itself struggling to control conflicts
on three fronts (Asia, Europe, and the Middle East). Not even a country that outspends its rivals on
defense by two to one can maintain a war footing simultaneously across so many theaters.

The idea that democracies around the world will join up with America and Europe against the
authoritarian threat seems like an illusion. Instead of joining with the embattled democracies of the
Global North, the rising democracies of the Global South – Brazil, India, and South Africa – seem
unembarrassed to be aligning with regimes that rely on mass repression, the cantonment of entire
populations (the Uighurs in China), and shameless murder (Navalny being only the most recent
example).

To be sure, the authoritarian axis currently is united only by what it opposes: American power. It is
otherwise divided by its ultimate interests. The Chinese, for example, cannot be overjoyed that the
Houthis are blocking freight traffic through the Red Sea. The world’s second most powerful economy
doesn’t have all that much in common with an impoverished Muslim resistance army or with theocratic
Iran.

Moreover, both Russia and China remain parasitic beneficiaries of a global economy that is sustained by
US alliances and deterrence. That is why they still hesitate to challenge the hegemon too directly.
However, like sharks, they smell blood in the water. They have not only survived US sanctions but
continued to prosper, replacing their dependence on embargoed markets with new markets in Latin
America, Asia, and India. Both Russia and China have discovered that American control of the global
economy is not what it once was.

This discovery of American weakness might tempt them to risk a joint military challenge. As matters
stand, US diplomacy and deterrence have successfully kept the axis divided. CIA Director William Burns
and National Security Adviser Jake Sullivan are keeping the channels open to China. Blowback American
strikes against Iran have apparently convinced the theocrats to rein in Hezbollah and the militias in Iraq
– though not the Houthis, whom nobody seems able to control.

It doesn’t take strategic genius to see the opportunity China and Russia might be contemplating. If they
decided to mount an overt challenge to the American order – for example, with a coordinated,
simultaneous offensive against Ukraine and Taiwan – the US would struggle to rush weapons and
technology into the breach.

Nuclear weapons would not necessarily deter China and Russia from risking a coordinated attempt to
take Taiwan and the rest of Ukraine. All parties would pay a horrendous price, but Russia has shown
what it is willing to expend in Ukraine, and both China and Russia may believe that there will never be a
more opportune moment to overthrow American hegemony. If they were to combine forces, we would
face the most serious challenge to the global economic and strategic order since 1945.

Nobody has any idea what the world would be like on the other side of such a confrontation. We cannot
even assume, as we have always done, that America would prevail if faced with a simultaneous
challenge from two formidable powers. If a pessimist is someone who imagines the worst in order to
forestall it, we should all be pessimists. Keeping the authoritarian axis from becoming a full-fledged
alliance should be America’s first-order priority.

Specifically, exacerbates tensions surrounding Taiwan – makes escalation inevitable.

Keleman and Stonor ’22 [(Barbara Kelemen, research fellow at Central European Institute of Asian
Studies with a Masters in international affairs from The London School of Economics and Political
Science, Alexander Stonor, business analyst at Global Business Reports with a masters in diplomacy and
foreign policy from The University of London) “Can the West Shake Its Dependence on China’s Rare
Earths?, The Diplomat, Sep 17 2022” https://thediplomat.com/2022/09/can-the-west-shake-its-
dependence-on-chinas-rare-earths] marlborough-am rct hwkm

Weaponization of the REE Sector

China’s continuing dominance of the REE sector seriously impacts the West’s ability to find autonomous
solutions to support its own defense industry, let alone impose economic sanctions on Beijing.
Although the Western industrial complex has been reliant on China for REE exports for years, the issue
only began to prompt security concerns in 2010, after China halted exports of REE materials to Japan
amid ongoing diplomatic tensions. Still, little has been done since then when it comes to China’s
monopoly over REEs. Quite the opposite, Beijing has even further strengthened its grip over the sector
by increasing its investment into crucial mining projects across Africa.
That said, this seems to be changing following recent tensions around Taiwan. This is most likely due to
the Western military industry’s reliance on China’s REEs, which probably keeps Pentagon staff up at
night. REEs are needed to manufacture fighter jets, submarines, and cruise missiles, meaning that
Western military supply chains are highly vulnerable to Chinese decisions to limit REEs exports. With no
alternative to feed military apparatuses so far, North American producers of critical minerals estimate
that should confrontation occur, China could cut short the supply of critical minerals to the U.S. in an
event of war, and exhaust the U.S. stock of minerals necessary for its defense apparatus in less than 90
days.

With this in mind, China took aim at the sector earlier in the year when it said it will restrict access of
two U.S. defense companies to its REE exports. Their reliance on the Chinese sector in this regard was
directly quoted by the media and was weaponized as retaliation for U.S. arm sales to Taiwan. It is thus
reasonable to assume that China fully realizes the potential impact such an embargo would have on
Western military apparatus; NATO’s dependency on rare earths from China seems to be even bigger
than its dependency on energy from Russia.

REE Decoupling: An Unrealistic Timeline?

Western military industries’ dependence on Chinese rare earths will not vanish overnight. The path
toward (partial) autonomy involves a blend of three factors: lawmaking, international alliances, and
streamlined permitting processes. Indeed, the U.S. Departments of Defense and Energy, along with
mining majors, are currently forging programs to build a domestic supply chain of critical minerals in
response to the bipartisan infrastructure law, the CHIPS+ Act, and the Inflation Reduction Act.

In addition, the DoD plans on financing a Lynas separation plan in Hondo, Texas, to tackle industry
weaknesses in the midstream processing of REEs: the extraction, separation, and purification
technologies. The facility could produce up to 5,000 t/a of the rare metals.

However there still appears to be a lack of pragmatism in the Biden administration’s understanding of
the issue. There is a gap between legal initiatives to favor REE production and the time it takes to get a
mine in production in the United States. The average time for the Bureau of Land Management to issue
a permit for a hard rock project is around two years, before the development and construction stages
that can take up to a decade. In addition, there also seems to be a disparity between the U.S.
government and the private sector, which still continues to make new major deals with Chinese
producers. Ford only recently announced a major deal with Chinese CATL to supply lithium iron
phosphate batteries starting in 2023.

Lengthy permitting processes, among other things, will likely hinder Washington’s – and the West’s –
agility when responding to the next Taiwan crisis, giving Beijing the upper hand. For years to come
China will be able to retaliate to any intervention in a Taiwan contingency by sanctioning U.S. military
contractors dependent on REEs, a card Beijing has shown it does not hesitate to play when tensions are
high. All this suggests that the clock is ticking in Beijing’s favor.
Taiwan invasion collapses the US alliance system which triggers global proliferation
and nuclear escalation – extinction.
Easton ’23 [(Ian Easton, Senior Director at Project 2049 Institute with a Masters in China studies from
National Chengchi University) “The World after Taiwan’s Fall Chapter 1, If Taiwan Falls: Future Scenarios
and Implications for the United States, Pacific Forum International, Feb 14 2023”
https://pacforum.org/wp-content/uploads/2023/02/Issues_and_Insights_Vol23_SR2.pdf] hwkm

Harsh Geostrategic Realities

By seizing Taiwan, the PRC would have effectively carved out a sphere of influence for itself in Asia using
violent methods. This invasion would have grave implications for international law, the ideal of national
self-determination, and the principle of state sovereignty. The fall of Taiwan would undermine
perceptions of U.S. global diplomatic and military leadership, straining (and possibly breaking) the
American alliance system and the United Nations System. China would be viewed as the most powerful
nation in the world and the primary mover of the 21st century. Leaders would experience trepidation as
Beijing marched toward its vision of a new centralized, authoritarian world order. Nuclear arms racing
would start and could easily rapidly spiral out of control. The likelihood of World War Three breaking
out could climb higher than anything previously seen. It can be expected that the world would begin
sliding toward the brink of an abyss, and human civilization would risk being knocked backward in its
developmental story. Abstract ideas like international law and universal values would increasingly
appear quaint, even faintly ridiculous. This would be a new age of empires; might would once more
make right.

In such circumstances, Japan could be expected to go nuclear and become heavily militarized. Tokyo
would likely be in the grip of a profound sense of insecurity and disillusionment with U.S. defense
guarantees. It is possible that Japanese politics could swing in a right-wing, authoritarian direction.
Alternatively, it is possible that far left-wing politicians could gain power, and Japan might end up band
wagoning with China. In either event, there would be an increasing risk that Japan’s democracy would
erode, and the country could experience a wave of political violence. Over time, it may even be possible
that Japan would become a dictatorship.

South Korea would almost certainly feel itself being pulled into China orbit, and policymakers in Seoul
would face the unpalatable choice of losing of their freedom and sovereignty or resisting CCP influence
alongside the United States and Japan. South Korea would likely go nuclear and attempt to save their
nation from takeover by building an independent deterrent force. South Korea may experience an even
deeper domestic political crisis than Japan. It seems likely that the Philippines, Indonesia, Malaysia, and
other Southeast Asia nations that are currently hedging their bets would conclude that they had no
choice but to align themselves with Beijing against the United States.

North Korea would likely be emboldened by a successful Chinese invasion of Taiwan and reconsider
long-dormant plans to weaken and, if possible, destroy South Korea’s government and affect a takeover
of the peninsula. With the power and prestige of the United States drastically reduced and South Korea
acutely vulnerable, it seems probable that North Korea would seek to obtain China’s help in attacking
South Korea. Beijing is likely to see the situation as an opportunity to drive American forces off the Asian
mainland. China’s government would probably encourage and support some degree of North Korean
aggression. At a minimum, an unprecedented campaign of coercion would likely result, which could
escalate to war. At the same time, CCP influence over Pyongyang would grow, and North Korea would
struggle in vain to maintain its independence from the new PRC empire. India would almost certainly
see the loss of Taiwan as a national security disaster and quickly expand its nuclear weapons arsenal
and further build up its conventional military along the border. With Taiwan gone, the PLA would likely
focus on re-taking territories controlled by Delhi as its next major mission. Australia will fear being
encircled and isolated as the Chinese military pushes across the South Pacific. Canberra might opt to
develop its own independent nuclear armaments program and accelerate plans to acquire nuclear-
powered submarines. The Quad would be at a distinctive crossroads; it may become the foundation for
a collective security organization like NATO, but it could just as easily fall apart.

A similar crossroads would be reached in Europe. With the United States distracted humiliated by China,
NATO countries might rally together in common cause and redouble their efforts to bolster collective
security. It seems at least as probable, however, that the post-war bonds that have long tied together
the great democracies of Europe would fray. Combined Chinese and Russian influence campaigns might
succeed in getting countries such as Germany, France, and Italy to embrace pro-Beijing policies that
drive them against the United States and fatally fracture the NATO alliance network. European disunion
might follow, throwing the continent into a political environment eerily reminiscent of the 1920s and
1930s.

With the PRC on the march and global geoeconomics in a downward spiral, fragile governments in the
developing world could topple in large numbers, leading to cascading waves of seething political
violence and, in several countries, devastating famine and starvation. Fascist, Communist, and Islamist
dictatorships would emerge across Eurasia, Africa, and South America. Even European countries with
moderate-to-high Human Development Index (HDI) scores might be at risk of being overtaken by radical
populist impulses driven by the spreading economic despair.9 The CCP would seek to exploit the
unstable environment as an opportunity to rapidly spread its model of totalitarian governance, create a
global network of proxy governments, and fundamentally transform the world order.

Having examined the likely implications of a successful Chinese invasion of Taiwan irrespective of how it
was to happen, let us now turn our attention to the most important variable in the equation: what
would the United States do?

Ratification includes negotiations – better than no seat at all.

Danner ’24 [(Lukas Danner, Fulbright-NSF Arctic Research Scholar at the Centre for Arctic Studies at
the University of Ireland with a PhD in international relations from Florida International University)
“Could New Underwater Territorial Claims in the North Pacific and Arctic Finally Prompt the US to Adopt
the UN Convention on Law of the Sea?, East-West Center, Jun 26 2024”
https://www.eastwestcenter.org/news/web-article/could-new-underwater-territorial-claims-north-
pacific-and-arctic-finally-prompt-us] hwkm

In a groundbreaking announcement this past December, the US Department of State unveiled a

significant expansion of America’s maritime frontiers in waters off the US coasts, mostly in the Arctic,
Pacific, and Atlantic oceans. As the result of two decades of detailed scientific studies measuring the
extent of the continental shelf under the leadership of the State Department’s US Extended Continental
Shelf Project, US maritime territory grew overnight by 386,000 square miles—about four times the size
of the United Kingdom. The extended continental shelf, or ECS, areas where the new US maritime
territorial claims lie are marked in red on this map released by the ECS Project. Fifty-three percent of the
total is in the Arctic Ocean north of Alaska and another large chunk fills in an unclaimed "donut" hole in
the Bering Sea.

Decoding the Claims: Science Meets Sovereignty

To fully grasp the impact of these new claims, it’s essential to understand that the United Nations
Convention on the Law of the Sea (UNCLOS) allows coastal countries to claim rights beyond the twelve
and 24 nautical miles (nm) designated for their "territorial sea" and "contiguous zone," respectively.
They also have exclusive rights over sea column and seabed resources over an "exclusive economic
zone" (EEZ) extending 200 nm from their coasts and can potentially claim an ECS where projections of
the shallower continental shelf extend beyond 200 nm before dropping off to the deeper seabed.

ECS claims differ from EEZ claims because they require approval by a UN body, the Commission on the
Limits of the Continental Shelf (CLCS), to validate the scientific evidence of the claim. Additionally, ECS
claims provide rights to the shelf and seabed resources but not to the use and management of fisheries.

The Race to Secure Maritime Territory

Why has the US made these claims now? In part because it is playing catch-up, since other countries are
well ahead of the US in staking out their ECS claims. Moreover, its new areas are not only strategically
important, but they may be resource-rich in fossil fuels and rare earths. It wants to be sure that it gets
its fair share of seabed resources allowable under international law.

This is particularly true of the Arctic Ocean, where Russia, Canada, and Greenland have already made
much larger claims. Those three claims overlap around the North Pole because of the shallowness of the
ocean there, and they will have to be negotiated. For geographical reasons, the US claim cannot reach
that far north, but by having its own ECS claim, the United States will have a basis to engage with other
Arctic nations in negotiations on the future division of the Arctic seabed. Though Canada has expressed
willingness to negotiate with the US over the competing claims, not surprisingly within several weeks of
the US State Department’s announcement, Russia started taking first steps to reject the US claims.

To Ratify or Not to Ratify?

Although the United States played a key role in negotiating the provisions of UNCLOS in the 1970s and
supports most of the pact as customary international law (that is, international law based on consistent
state practice and opinio juris), it has never actually ratified the UN convention. This did not matter in
establishing the US EEZ because that doesn't require UN approval. But since the new ECS claim does
require approval by the UN’s CLCS commission, US non-ratification of UNCLOS will present a problem.

Some of the 165 countries that have ratified UNCLOS, including Russia, are already raising objections on
the basis that the US, as a non-party to UNCLOS, is not eligible to submit its continental shelf claims to
the Commission. On the other hand, without ratifying UNCLOS, the United States will not be able to
oppose ECS claims it regards as excessive.

Sealing the Deal on UNCLOS

The original US concerns over UNCLOS were largely over provisions regarding deep-sea mining in areas
beyond territorial claims. Today, however, US mining and petroleum interests are urging ratification
because without it US companies will be unable to claim any mining concessions the Seabed Authority
gives out. The military and diplomatic communities have long supported ratification because they
believe it will help give legitimacy to US efforts to support the rule of law and maintain freedom of
navigation.

One source of objections is the fear of legal challenges at the International Tribunal for the Law of the
Sea if the US becomes a party to UNCLOS. But ratification can include reservations, and non-
ratification means that the US is entirely left out of negotiations on possible UNCLOS amendments or
new provisions.

The tantalizing prospect of 386,000 square miles of new underwater territory should add powerfully to
the argument that the time is ripe for the US to reconsider its stance on acceding to UNCLOS.