UNCLOS necessary to protect rights of marine researchers
U.S. based oceanographers and others conducting marine research are at a significant disadvantage due to U.S. non-party status to UNCLOS as they have to seek slow slow and complicated approval from foreign governments from access to their exclusive economic zones or continental shelves to conduct scientific research. Ratification of UNCLOS would resolve this because they could take advantage of the more favorable "implied consent" provisions under UNCLOS to further marine research.
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As most of the Arctic Ocean has not been explored, one of the U.S. policy goals in the Arctic is to increase understanding through scientific research.60 Currently, the foremost scientific research interest for the United States is to obtain data regarding the geologic composition of the continental margin. In addition, the United States is pursuing research in climate variability, Arctic marine ecosystems, oil spill effects, and unconventional energy and mineral resources.61 Marine Scientific Research (MSR) in Russian arctic waters, where Russia has the longest Arctic coastline, is hampered by Russian reluctance to permit U.S. researchers access to Russian waters.
The United States has long accepted the UNCLOS regime for marine scientific research. UNCLOS gives coastal states exclusive control over scientific research in the territorial sea.62 Coastal states also have extensive rights in the EEZ, including the right to reject a request by a foreign nation or company for access to its EEZ or continental shelf if the project is of direct significance for the exploration and exploitation of natural resources63 or involves drilling into the continental shelf, the use of explosives, or the introduction of harmful substances into the marine environment.64 The convention provides all states the right to conduct marine scientific research in the high seas.65 A state’s ability to perform scientific research in the area is subject to the provisions of Part XI, the deep seabed mining regime.66 Article 143 states that all member states can conduct marine scientific research in the area, but they must provide the results of their research and analysis to the international community through the International Seabed Authority.67
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The third way in which the U.S. national Arctic policy goals would be enhanced by accession to the LOS Convention concerns the nation's commitment to enhancing scientific monitoring and research into local, regional, and global environmental issues, and measures that will ensure that natural resource management and economic development in the region are environmentally sustainable. Much of the research to accomplish those goals must necessarily be conducted in waters beyond U.S. jurisdiction. Unfortunately, U.S. oceanographers are presently at a serious disadvantage in gaining access to the offshore waters of other states. As an earlier presidential cabinet report concluded, our status as a non-party to the Convention "often slows or complicates approval for U.S. ships and aircraft access to conduct marine scientific research in foreign waters."35 One disadvantage of our non-party status that stands out is that U.S. researchers are unable to take advantage of the more favorable "implied consent" provisions for gaining access to conduct marine scientific research in other states' exclusive economic zones or on their continental shelves.36
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The essential role of marine scientific research in understanding and managing the oceans is also secured. The Convention affirms the right of all States to conduct marine scientific research and sets forth obligations to promote and cooperate in such research. It confirms the right of coastal States to require consent for such research undertaken in marine areas under their jurisdiction. These rights are balanced by specific criteria to ensure that coastal States exercise the consent authority in a predictable and reasonable fashion to promote maximum access for research activities. More U.S. scientists conduct marine scientific research in foreign waters than scientists from almost all other countries combined.
There are many other examples of benefits that would be derived from U.S. accession to the LOS Convention. For example, the U.S. research fleet frequently suffers costly delays in ship scheduling when other nations fail to respond in a timely manner to our research requests. Currently, we are not in a position to rely on articles in the Convention that address this issue, such as the “Implied Consent” article (Article 252) that allows research to proceed within 6 months if no reply to the request has been received, and other provisions that outline acceptable reasons for refusal of a research request. Also, as a party to the Convention, the U.S. could participate in the member selection process, including nominating our own representatives, for the International Law of the Sea Tribunal, as well as the Continental Shelf Commission and the various organs of the International Seabed Authority.
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Enhancing access rights for United States marine scientists. Access for United States marine scientists to engage in fundamental oceanographic research is a continuing struggle. The United States will have a stronger hand in negotiating access rights as a party to the Convention. As one example of a continuing problem, Russia has not honored a single request for United States research access to its exclusive economic zone in the Arctic Ocean from at least 1998, and the numbers of turn-downs for American ocean scientists around the world is substantial. This problem could become even more acute as the United States begins a new initiative to lead the world in an innovative new program of oceans exploration;