The international community has much to celebrate four decades of the United Nations Law of the Sea Convention (UNCLOS). Often referred to as the ‘Constitution of the Seas’, this international treaty can claim a mixed bag of successes and failures given that it was a compromise formula for the competing interests’ of the coastal states, landlocked states and the major maritime powers over issues of governance, management and use of sea based resources. Since it’s signing in 1982, numerous disputes emerging from differing interpretation or application of the Convention has led to heightened politico-diplomatic-strategic tensions among the signatories, and in some cases, triggered deployment of navies and law enforcement agencies.

At the heart of majority of disputes among States under the 1982 UNCLOS is the enormous sea wealth comprising of living resources (fish, etc.) and non-living resources (metals and minerals). In fact, the genesis of the Law of the Sea was to address issues concerning control of sea to ensure trade monopoly and the growing demand for seafood. The latter was marked by a series of 20th Century confrontations between United Kingdom and Iceland also called as the Cod wars and the Anglo-Dutch Fishing Disputes. Fishery disputes continue even today, and Illegal Unreported and Unregulated (IUU) fishing has added a new dimension to tensions between States.

While majority of the disputes at sea are with regard to living resources, non-living resources that lie on the floor of the oceans are beginning to attract politico-legal attention. This is notwithstanding the fact that the seabed beyond Exclusive Economic Zone-Continental Shelf has been referred to as the ‘common heritage of mankind’. It is governed by an autonomous international organization - International Seabed Authority (ISA) under the United Nations - which calls it the ‘Area’. The ISA is an intergovernmental body of 167 member states and the European Union.

The ongoing politico-strategic competition between the United States and China is already being played out on the oceans and seas particularly in the South China Sea, and has the potential to spill deep down to the ocean floor. The seabed is known to contain Polymetalic Manganese Nodules (manganese, iron oxides and other metals such as copper, cobalt, and zinc), Polymetalic Sulphides (copper, zinc, lead, iron, silver and gold) and Cobalt-rich ferromanganese crusts (cobalt, platinum and Rare Earth Elements (REE), Nickel and Manganese). These metals are critical for energy transition which is underpinned by solar and wind energy and the associated systems such as storage batteries that are considered critical for decarbonisation, the mantra for addressing climate change.

The United States is signatories to the 1982 UNCLOS but not ratified the Convention; therefore, it is not a Member of the ISA. This disqualifies the US to advance its political, diplomatic, strategic, economic, environmental or technological interests in the activities of the ISA. However, it has the status of an Observer.

The US companies are reluctant to invest in seabed mining due to risks of legal disputes that may arise during operations. For instance, Lockheed Martin Corp. is unsure of the “international recognition” of the US’ national mining rules in the ‘Area’, although the company has two permits from NOAA for exploration in international waters between Mexico and Hawaii. This places the US at a disadvantageous position against other competitors such as China and Russia. It is noted that the US may have to “sit by and watch other countries scoop up critical resources.  

On the other hand, China has signed-ratified the 1982 UNCLOS and has rights to “explore and potentially exploit 238,000 square kilometers of the deep sea in areas outside national jurisdiction”. Furthermore, it has secured five of the 30 mining contracts that the ISA has issued so far. It merits mention that China possesses significant technological capabilities to undertake seabed mining.

In the absence of any US ‘voice and pressure’ in the ISA, China can potentially “shape international norms” with regards to seabed mining. This assertion can be substantiated by China’s creeping assertiveness and coercive actions against other claimants to the South China Sea features. Beijing also refused to participate in the dispute resolution mechanisms under the 1982 UNCLOS after Philippines sought intervention of the Permanent Court of Arbitration (PCA) to annul China’s “excessive” maritime claims marked by a nine-dash line which extends well beyond into the EEZ claimed by the Philippines. Washington has on regular basis accused China of violating the provisions of the 1982 UNCLOS particularly in the context of the South China Sea.

It is fair to argue that the US will not ‘sit idle and watch’ China dominate seabed mining which not only has economic value but there are attendant strategic issues concerning the underwater domain that is home to strategic submarines that carry nuclear weapons.

The US may call upon its alliance partners such as Canada, United Kingdom and Japan who will be actively involved in the finalization of the Mining Code that will attract debate and discussions in the coming months. It may even look towards India through the G20 to influence ISA policies.

Dr Vijay Sakhuja is Associated with Kalinga International Foundation, New Delhi.