Those that are pushing for ratification have the following arguments:
- The Convention does not impose compulsory settlement of disputes through international bodies established by the Convention.
- The Convention allows states to opt out of discussions on issues of critical importance to their national interests, including disputes over maritime boundaries.
- The rule stipulating that submarines pass through the territorial waters of another state after having surfaced is not binding, so there would be no restrictions on military or intelligence activities in the territorial waters of other states. These actions are not explicitly prohibited by the Convention, and therefore it would not be a violation.
- The formal accession to the Convention is important because the Arctic coastal states for various reasons are actively trying to introduce their own navigation rules and restricting the freedom of navigation.
Obama's intention to go ahead with ratification despite the opposition of the Republicans has the support of the Department of State, the Department of Defense, the intelligence community, the Department of Commerce and Energy, and several oil companies that are developing offshore zones. After the last hearing on ratifying the convention held in June 2012 by the Committee on Foreign Affairs, 34 senators (out of 100) signed a statement against ratification.
Comparing the positions of supporters and opponents of ratification, it is apparent that the economic, political, and military arguments basically boil down to a discussion of how the U.S. can keep a "free hand." Both sides consider this principle to be non-negotiable. Both sides also agree that, regardless of ratification, the U.S. will circumvent any provisions of the Convention that are not in its national interest.
Opponents of ratification have almost no meaningful objections, their arguments are very general. The ideologically-driven desire of some of the political elite to ensure the U.S. can act unilaterally has helped stall ratification. But overall, ratification is in sync with Obama's national security strategy, which focuses on the intelligent combination of "soft" and "hard" power. From this, we can conclude that the obstacles to ratification are mostly just domestic politics and may soon be removed.
Will Russia benefit if the U.S. ratifies the UNCLOS?
If the U.S. Senate ratifies the Convention on the Law of the Sea of 1982, Russia will not witness any significant changes in bilateral relations in the Arctic. It is obvious that the U.S. intends to apply the Convention only when it coincides with its national interests. Potential conflicts will be resolved through bilateral negotiations rather than UNCLOS provisions directly.
Since the Convention does not oblige all contentious issues to be decided within its rules and institutions, the United States can either appeal to precedent or refuse to discuss an inconvenient problem in terms of the Convention. Apparently, some Russian experts underestimate the fact that under international law, common law prevails over codified law. This allows the U.S. to bypass the Convention and is all the more reason to not consider it a universal source of law on Arctic issues.
In line with this logic, experts from the Ministry of Defense and the Department of State submitted their official conclusions to the U.S. Senate in which they found that ratification would not impose any restrictions on the military.
Moreover if the Convention was ratified, the U.S. could appeal to the right of transit in territorial waters enshrined in the Convention as grounds for legal military presence not only in the Barents Sea, but also anywhere in the world. In case of complaints about the inadmissibility of covert presence or military activities in territorial waters, the United States could exercise the right of self-interpretation, challenging what is meant by military activities in the particular case (Article 298-1 of the Convention).
U.S. military activities cannot be a matter of contention within the framework of the Convention. Similarly, Russia will not receive any positive changes to the delimitation of the Bering Sea or defining the boundary line in the Chukchi Sea and beyond the exclusive economic zone towards the pole.
Thus, strategic environment and level of cooperation between Russia and the United States in the Arctic will be based on the state of their bilateral relations in general, and not on the U.S. decision of whether or not to ratify the UN Law of the Sea.