"Lead in the Far North" by Acceding to the Law of the Sea Convention
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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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First, the policy statement highlights the importance to our national security of navigation rights through international straits in the Northwest Passage over North America and the Northern Sea Route over Russia's northern border.33 Military and commercial navigation through those straits will become more important-and perhaps more contested-as the Arctic sea ice recedes and thins. Part III of the LOS Convention on straits used for international navigation includes twelve detailed articles that address the status of such straits, the right of transit passage, and the rights, responsibilities, and jurisdiction of states bordering on those straits. Although a right of transit passage through international states almost certainly ripened into a rule of customary law by the time the LOS Convention entered into force in 1994 (and before Canada became a party to the Convention in 2003), it seems certain that the customary law rule is not nearly as well defined as the articles in Part III of the Convention. Only as a party to the Convention would the United States be in a position to assert the full scope of the navigation rights set out in Part III of the Convention.
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The 1982 LOS Convention sets out a carefully-drafted balance between safety, security and stewardship in the maritime domain. It is not a perfect treaty (is there such a thing?), but on balance, it is a very good treaty for the United States. The audience need not take my word for that. The first recommendation to come out of the bipartisan blue ribbon U.S. Commission on Ocean Policy, chaired by former chief of naval operations and secretary of energy James Watkins, was a recommendation that the United States accede to the 1982 Convention.13 Similarly, former secretary of defense and CIA director Leon Panetta supported accession in his capacity as chairman of the prestigious Pew Ocean Commission.14 Following a decade-long debate over the Convention's strengths and weaknesses, Canada-our Arctic neighbor and fellow member of NATO and the Arctic Council-ratified the Convention in 2003.15
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Similarly, President Obama emphasized the nexus between international law and national security in his 2013 National Strategy for the Arctic Region, in which he focused on three lines of effort. One of the three lines was to:
Strengthen International Cooperation-Working through bilateral relationships and multilateral bodies, including the Arctic Council, we will pursue arrangements that advance collective interests, promote shared Arctic state prosperity, protect the Arctic environment, and enhance regional security, and we will work toward U.S. accession to the United Nations Convention on the Law of the Sea.
President Obama reiterated his commitment to U.S. accession in the recently-released 2015 National Security Strategy, in which he warned that failure to ratify UNCLOS "undermines our national interest in a rules-based international order."19