Oceanic research

Oceanic research International legislation

The irrsucra: of marine scientific research end what regime should govern its conduct are currently under consideration at the UN Conference on the Law of the Se3 fUAfCkQS).. The author brieBy exemines *he evolution of these issues, and then carries cut a detailed analysis of the status of marina research under international law and 88 provided for in the legislation of individual states. The values and palioy stances of states are con&dared in relation to marine research issues. Proposals for the governance and regulation of merine scientific research currently under discussion at UNCLOS are anafysed, and the author offers his awn ree~mm%ndat~ons* At the time of writing, a research of

Washirrgton

Cordon USA.

the author was

associate Hell,

at the University

School Seattle,

We il now

of

WA

Law, 98195,

on the staff

of the

for Natural Areas, Center Washington, DC 20036, USA.

The author wishes %mks to Richard eXGitiC%g

his

interest

to express speciaf 3. in

the

Bidder law

for d

the

first sea

and Wiltiem T. Burke, without whose guidance and criticism this article would not have been written. The author is also grateful to Edward Miles and Warren S. Wooster for additional observations and comments.

0308s597X/80/020091-37

$02.00

law and national

The Third United Nations Conference on the Law of the Sea (UNCLOS III} has recently completed its Eighth Session. Substantial progress has been made on many outstanding issues. Many p~~~c~~a~ts are optimistic that agreement on a treaty is close. The ~o~fere~~e has decided that the next Session will be its final substantive Sessionf Among the issues being considers are marine scientific research and what regime should govern the way it is conducted. This article interprets and evaluates the provisions of the Informal Composite Negotiating Text (ICNT)2 on the issues and considers the maritime legislation adopted by coastal states which affects marine scientific research.

Tradit~o~~~y~ freedom of scienr%c research has bees considered a corollary of the hoary doctrine of the freedom of the high seas. Before the second world war there were very few restrictions on marine scieatific research. Where permission was required, it was generally for activities to be carried out in the territorial sea, and arrangements were often made through informal contacts with scientists in the coastal states3 Since the end of the second world war interest in the oceans and its resources has steadily grown, and with this interest coastal states began to make expansive claims of jurisdiction or sovereignty over the waters adjacent to their coasta In 1945, the USA issued the Truman ~roclamat~un which claimed ju~sdiction over the resources d the continental shelf and provided for the crestion of fishery conservation zones.4 In I947, Peru and Chile extended their national sovereignty out to 200 miles. 5 Nevertheless, k was not until the 1958 Law of the Sea Conference that explicit reference was made TV scientific research. The 1958 Conference was an attempt to codify the existing

0 1980 IPC Business Press

99

*The proposed timetable for the Ninth Session, to be held in two stages in New York and Geneva, calls for the formalization of a treaty text to a final conference document, the submission of and their amendments formal the appropriate consideration by committees and finally the adoption of the convention. A/CONF.62/88, 1979. Informat Composite * UNCLOS Ill Text Neaotiatina (ICf’JT), ~~~NF.62~P.~~. 1977, is the most recent of three informal negotiating texts. It has since been revised, but the ICNT will be used as the basis for discussion in this article, and where it diverges from the revised ICNT the change will be noted. The Articles represent the chairman’s of the consensus within his view negotiating committee. 3 .f Kildow, ‘Nature of present restrictions on oceanic research, in W.S. Wooster, ed, Freedom of Oceanic Research, Krane, Russak, New York, 1973. 4 Proclamation No 2667, Federal Reizisrer, Vol 10, 1945. p 12303. 8 Peru, Presidential Declaration, 23 June 1947; and Chile, Supreme Decree 781, 1 August 1947. @Convention on The Continental Shelf, 29 April 1969, TIAS No 5578. research and f R. Revelle, Scientific exploration of the sea-bed’, in J. Sztucki, ed, Symposium on the international Reaime of the Sea-Bed. Rome, 30 June5 kly 1969, Accademia Nationale di Lincei, Rome, 1969, p 659. B Kildow, op cit. Ref 3, p 14: examples from ?973 to date are currently being compiled by Warren S. Wooster. *Address by PM, Fye to Associates Dinner, Woods Hole oceanographic Institution, April 2 977. to A/AC.1 38/28. 1970. ” A.‘AC.138/80, 1972. ‘Z’Report To the General Assembly on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction’, Vol II, UN GAOR, Supp No .?Y,A/9021,1973,pp5and6. lJ Summary of discussions concerning scientific research in Sub-Committee III of the Law of the Sea Preparatory Cammittee, Fourth Session, Geneva, 17 July- 1% August 1972.

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customary law of the sea and resulted in four conventions, one being the Convention on the Continental Shelf which dealt explicitly with the question of marine scientific research. Coastal state consent was required ‘in respect of any research concerning the continental shelf and undertaken there’.6 After the Convention entered into force in 1964, interest in the development of ocean resources continued to grow, which, together with the emergence of a substantial number of new nations as the cotonial era drew to a close, resulted in an increase in restrictions on the conduct of marine scientific research, From I963 to 1966 there were only six documented cases of refusals to requests from US oceanographers,? while from 1967 to 197 I there were about 32 cases of difficulties and refusals.* Complete figures are unavailable for the period 1972 to the present, but in 1976, according to the records of the University National Laboratory System, about half the scheduled cruises within other nations’ jurisdiction had requests denied or requirements imposed that were so restrictive that the cruise was aba~doned.p Before the preparatory sessions for the Third United Nations Law of the Sea Conference (UNCLQS III), which were held in New York and Geneva (1971-733, three regional agreements on Ocean policy affirmed the right of coastal states to expand the limits of their jurisdiction and to control scientific research. In 1970, 15 Latin American states met in Lima and approved a “Declaration of the Latin American States on the Law of the Sea’, Resolution 5 of which requires prior autho~zation for the conduct of scientific research.‘@ The Caribbean states met in Santa Domingo in 1972 and confirmed the right of coastal states to claim a 200 mile ‘patrimonial sea’ within which they have the ‘right to regulate the conduct of scientific research’. l l African nations expressed their position at a meeting of the Council of Ministers of the Organization of African Unity @AU), held at Addis Ababa in 1973, and affirmed the right of coastal states to establish a 200 mile exclusive economic zone (EEZ), wherein scientific research shall oniy be carried out with the consent of the coastal state.12 These declarations~ together with the discussions at the Fourth Session of Sub-Committee III of the Law of the Sea Preparatory Committee in Geneva on 17 July-18 August 1972,13 indicate a strong preference on the part of a significant number of states, for the most part developing, for coastal state control of scientific research in areas off their coasts. These states have been successful in having this reflected in the informal draft treaty texts at UNCLOS (see Figure 1 for areas that would be covered by EEZs).

The positions taken by states on the issue of freedom of marine scientific research are fairly well defined. The developed countries who possess a significant oceanographic research capability, such as the USA, Japan, the UK, France and the Federal Republic of Germany, generally support minimal restrictions, while the developing countries of Latin America, Asia and Africa demand expanded coastal state control. Nevertheless, these groups are not monolithic and perspectives may vary depending on factors other than a state’s status as developed or developing.

IMARINE

PUMX

April 1980

L__--90”

12OU

1500

180*

15cP

1200

90"

600

30"

figure 1 L Qceatn areas that would be in~~~~a~ ~i~~i~ a 200 mile exclusive ~~~~~~j~ Source: Ckxan Policy Committee, National Academy negotiations’, Science, 15 July 1977, p 231.

t’Japan caufd also be included here for the purposes of fishery research. ‘“The USSR has consistently danied requests by US vessels to engage in research on their shelf, 3etween 1967 and 1971 six requests were refused and in four cases military security was cited as the reason, See Kildow, op cir, Ref 3, p 14, The USSR hss not supported attempts during the Conference to adopt liberal Articles relating to scientific research despite ranking second in number of research vessels and scientists and fifth in terms af expenditures. t*According to one observer, ‘During the early pm-conference negotiations, the United States Qov~rr?ment scam&y bothered to conceal that petroleum rights and gfabat stratagy were of such vitai $mportanca that protection of scientific research might be sacrificed, C. Maechting, Jr, ‘Freedom of scientific research: stepchild of the oceans’, V&&k3 ~~t~~~~~tj~~a~ Law Journei, Vol 3 5,19X, pp 539 and 547, “‘Comments of Professor Edward Miles, Institute for Marine Studias. University of Washington, USA, 23 January 1979.

MARINE POLICY Aprif 3980

00

30"

6OQ

90"

mne (EEZ).

of Sciences, ‘The marine scientific research issue in the iaw af the sea

Deveiaped countries engaging in oceanic research may be divided into two subgroups far the purpose of discussing their views OR scientific rese~~h. The USA, the USSR and, to a lesser extent, the UR,‘4 p~sess a tru@ e;nobal research ~~~ab~~t~~Other dev~~~~ed nations, such as the European states and Canada, possess crnfy a region& capability. With the exception of the ~~~R~~~ must states trad~ti~~~~ly engaged in blue water oceanic research have supported freedom of access to waters under coastal state jurisdiction, although that support was not evident in the early pre-conference sessions.“6 The states with only a regional ~a~ab~l~ty have shown a willingness to sacrifice the research issue for the sake of other interests, and have only recently shown support for limiting coastal state authority. The reason for this difference in views may be traced to the fact that while the states possessing a regional ~~~ab~~it~have an interest in global research, because they have the s~ie~ti~~ and technical ~a~abi~~~ to utilize the pub~~sh~ data, they have Few projects that will suffer from extensive coastal state control on a global scale. The major trade-of?” at UNCLOS has been the sacrifice of some aspects of trad~t~~~~ high-seas freedoms for control of natural resources in scmes of expanded national jurisdiction. I7 Although the views of marine scientists in these countries have favoured limited coastal stde

93

COrmOf, their Is Ocean

Policy Committee, rational ~~~~~rn~ of Sciences, The marine scientific research issue in the taW of tha sea negotiations’, Science. 15 July 1377, p 230; see also W.S. Wooster, “The decline of marine scientific research’,

Marine

Dchnofogy Society Journal 2 November 1977: W.S. Wooster and M.

Redfield, ‘Consaqueneesof regutating ocean research’, in Waster, eb, op tit, Ref 3: and J. Knauss, ‘Deveiopment of the freedom af scientific research issue of the Third Law of the Sea Conference’, Ocean ~~~~~o~~~~~ and ~~~e~~~~~#~~ LBW ~~~~~~~~~of 1,7973,p 51. 23-I &id. Zt ~~arnpl~s of the former are the study of the ‘El Nifio’ off Ecuador, Peru and Chile, ~lnd marine geological and upw~l~~n~ stu&es off the coast of West Africa, Examples of the latter are the study of the cxrrren% off East Africa, which are believed to influence the timing and duration of the monsoon and which have ~rnp~~~nt irn~~~~~~~ns for the agr~c~~t~r~ of the A&n subcontinent, and studies of the dispersal of adjutants in the world’s oceans, See Ocean Paiicv ~ornm~ttea, 63~ c&, Ref 19, and Wooster, ed, op C& Ref S. 913x3 example of the monsoon illustrates the problem quite wett. This is one area wh~~ the retation of the ocean currents and climate may be simple enough to admit to study. The timing and intensity of the mansoon are the dominant factors determining the productivity of Indian agriculture. ft is believed to be dependent on currents off the coasts of Somalia, Kenya, South Yemen, Oman, Pakistan and India, If these states wefe to refuse access or place undue restrictions on the research, ~~f~rrnat~u~ vitat to the queiity of tiff3 of millions of peopk might not be obtainer, The s5me may be said to a greater or ksser degree of the at&x studies rhar affect gas and aif, as weil as fishE?ryd~va~opmant* 23 Address by Warren S. Wooster before the American Association for the A~v~nc~mant of Science, Houston, 7 January 1979. 24This argument has particular relevance to the US ~~~ano~raphic community~ because most research is conducted by private or university laboratories which strict under budgetary 0perata constraints. whereas most other states conduct OGeepiG research through ~ovemm~nt ~n~~t~t~n~ Thus the issue becomes one of politica! wifl as opposed to abitity to absorb the casts, ~~~~~~0~ess. the outcome may be the sama in either case. 26 ~ri~dh~irn and Kadane found avidenoo that Latin American states as a group de&ad control over oceanic research, that the Asian states did not favour freedom of acGess but had not expressed a strong desire for specific limitations, while the African states vacillated research ur enGouraging between ~o~~j~~a~o~~~~~$~

expressiun has

been muted. Because

must research

is

conducted by government labor~to~es, the scientists are pIaced in a precarious position for sustained criticism of government poliey,iR The primary argument advanced in favour of freedom of scientific research in the oceans is that of social utility. It is argued that scientitic research, when it results in open ~ublicati~~~ benefits all mankind, not only the state conducting the research.y9 Since acean ~h~~~rne~a are pervasive and transcend national bo~~dari~s~ a refusd to alfow aeeess, or the a~~~~~a~i~~ of excessive ~~~~~~c~~~~s tbat have the same effec& by one state may prevem, sx severefy iimil the value: of, research which c&d ben< a number of other states in the regiorP The examptes of this cited most aften incfude F~S~~~~~ that will contribute to resource development, as well as research in areas of broader community concern, 2* It is the case that all of these studies necessarily involve research cuffthe coasts of a number of states and, depending on the nature of the particular study, the refusal of one or a few to aIIow access may jeopardize the entire study.22 Conditions which may be placed on the conduct of research take OR as much importance as the question of access because af ~~e~a~u~al aspects of ocean research. distant-water research has severaI dis~nguisbing ~hara~ter~sti~s.~~First, the costs are very high (it now c&s in excess of $4 000 per day to operate the large o~e~~ogra~hi~ reseat=& vesseIs necessary for such r~sear~h~ therefore, any ~ond~t~~ns which signi~~antIy increase the costs of research may discourage it;2q second, the schedules for research are arranged at least a year in advance and may involve ~~o~rati~~ among scientists from several countries, thus a regime which leaves the question of access and its c~~diti~~s open to ~~~~rta~~~yuntil shortiy before it is scheduled to take place may have costs in other research opportunities foregone if the research cruise does not take place; finahy, kno~Ied~e of the oceans is ~onti~uaIly ~ha~~~~~.This may result in revisions of the iti~~~~~~during the ~l~n~i~~ phase, or where in the flefd, if observations so dictate. As a resuh, ~JQ regime which is not su~~ientIy Aexible to a~~omrn~ate such ~ha~~~s may prove an obstaefe to ~rn~~ant research ~~Y~~o~~n~ -

- Count&%

As with states with a highly developed research capability, developing coastal states have not always been united in their views on ocean research. Before and during the preparatory sessions of UNCLOS X11,the Latin American states took the lead in articulating the case for extensive coastaf state control of ocean research, with the African and Asian states folIo~~~ their lead,25 Franssetx ~stuIates that states may be ~a~e~ori~ed into four grades - feast develo~d, fesser developer medium despond and most developed. He argues that as states’ do~~esti~ research capabilities go through d~~~r~~t stages of development, their attitude changes. He concludes that during the earliest stages where no domestic capability exists there is little interest in scientific research, but where a domestic research capability begins to develop and a state begins the transition from de~~de~cy on foreign scie~tists~ scientific nationalism develops and scientists from other countries are subject to closer s~~~tiny*~~

enhancing the capabilities of devetoping countries. R.L. Friedheim and J.B. Kadane, ‘Ocean science in the UN pofitical arena’, Journal of Maritime Law and Commerce, Vol 3, 1972, pp 473 and 463. 2* H.T. Franssen, ‘Understanding the ocean science debate’, Ocean and International Law Development Journal, Vol 2, 1974, pp 187 and 190~ 192. Interestingly, Franssen is able to document such a development in postcolonial America. As the US domestic capability developed, Americans began to regard natural history weafth as a resource being exploited by foreigners. Demands were made for the research to be done by Americans and published in US journals. Once US scientists began to equal tha ability of foreign scientists, these feelings dissipated and foreigners were welcome again. Franssen notes that many Latin American states have arrived at the transition stage, whereas the Asians are just beginning to develop an independent capability, and the Africans have yet to begin to develop one. 27 As noted above, the 1973 meeting of the Council of Ministers of the dAU affirmed the right cf states to establish a 200 mile EEZ wherein research may only be carried out with the consent of the coastal state. 28 H.T. Franssen, ‘Deveioping country views of marine science and law’, in Wooster, ed, op cit. Ref 3, p 158. 29 ibid, p 159. 3o M.N. Frsnssen, ‘Ocean research and the developing nation perspective’. in Wooster, ed, op tit, Ref 3, pp 180-I 81. 31MAC.1 38, SR.46, 1971, cited in Franssen, op tit, Ref 26. 3* Franssen, up tit, Rof 28, p 162. What are described as research ships may in fact be engaged in intelligence-gathering activities. Brown notes that the US Defence Department is reported to have Pueblo as an described the ‘environmental research’ ship. Sea E.D. Brown, ‘Freedom of scientific research and the legal regime of hydrospace’, Indian Journal of international Law, Vol 9, 1969, pp 327 and 339 note 36. Similarly, ‘research ships’ may be used to implant sonar arrays or other sensing devices to monitor mavements of submarines or other activities occurring on or above the continental shelf. Ref 28. p 761. 33 Franssen, op tit, Concern over this issue is much the same as that expressed over the impact of research on resource development. That is, it is difficult to dist~ngujsh between basic and applied research. Data collected by scientific research vessels co&d be mititary for purposes by used sophisticated navies. Herman Franssen notes that surveys of the seasonal distribution of characteristics, such as temperature, salinity and sound velocity, as well as geological characteristics of the contiffued on page 96

MARINE POLICY April 198cT

Despite such differences in viewpoint, as discussion at IJNCLUS III evolved, developing states began to coalesce around the Latin American position favouring extensive coastal state control.*’ The chief concern of developing coastat states is the potential impact of scientific research on resource development. It is somewhat ironic that the argument most often cited in support of open access for marine scientific research, namely its social utility in terms of resource development, also provides the basis for arguments in favour of coastal state control. Developing coastal states fear that if research off their coasts results in knowledge useful for resource development, the benefits will not accrue to them but to other nations or international resource development firms. Research scientists argue that there is a fundamental distinction between ‘pure’ or ‘basic’ research and ‘applied’ research or limited exploration. In the case of the former, the object is to obtain data on geological, physical, chemical and biological phenomena in the oceans for the benefit of mankind with a view towards open publication, whereas in the latter case the knowledge gained is intended solely for the economic benefit of the group that acquired it; the information is restricted to that group or those willing to purchase it from them.28 Developing states take exception to this view on two counts. First, they point out that the distinction between basic and applied research does not have much significance from their perspective because it is di~cult to conceive of any type of research that will not in some way affect resource exploitation. Even the most esoteric physical, chemical or biological oceanography may contribute to knowledge of the distribution or migration patterns of living marine resources.29 Second, and more important, even assuming open publication of results, the benefits will accrue only to those with the scientific capability to interpret the data and the technological capability to translate the knowledge into economic benefits for the nation. This capability has been limited to the relatively few technologically advanced nations.30 This concern is evident in the remarks of the delegate from PDR Yemen at the 1971 preparatory session: It was a fact that, untiI the present time, the rich resources of the world had been exploited for the benefit of a minority of mankind. The wealth acquired by that minority had enabled it to make great stientific and te~h~o~ogi~al progress. As a result, it had acquired a supremacy in terms of real strength which enabled it to monopolize modern means of exploitatiom3’

This perception by developing states has resulted in a desire for a regime which guarantees sufficient authority to prevent research that has the ~tentiai of increasing the scientific and technological gap, and ensures that research conducted is responsive to their development needs. A parallel concern of the developing countries is that research projects conducted off their coasts will compromise their national security, There are two means by which this may occur. First, scientific research may be used as a cover for what are actually military operations. 32 Second, the results of legitimate scientific research may be used for military purposes.33

Community interests From the discussion of the perspectives of coastal states and research 95

states it becomes evident that both have legitimate interests which any new regime should accommodate. The form of this accommodation must represent community interests. Community interest should not be defined on the basis af a summation of the positions, dictated by self-interest, taken by a majority of states, but should flow from an objective appraisal of the conditions that will maximize the production and equitable distributor of wealth, not merely in the short term, but &so in the Io,ng term where future gains disoo~~t~ to present value so dictate, The c~rent d~~eIo~e~t of i~~rna~ona~ law is te~~~~ ~~~a~~ a recog&ion of extends ~~~isdi~t~ona~zones, within which cuastaI states wih exercise so~~e~e~~~controI for the purposes of r+esource management, conservation and exploitation. Therefore, the first criterion which must be met by the new regime governing scientific research is that the coastal state must be guaranteed sufficient authority to control any activity that may have a direct effect on present or future resourcs conservation or development. The second criterion is dictated by recognition that the developing law recognizes sovereignty only for purposes of exploitation, conservation and ~a~~~~m~~t of resources Iurisdictiota over other a~ti~tie~* such as &e Bse of ~~~~ia~ is!ands, marine ~o~I~~~~ and scientific research, is only recognized as a ~oroII~~~ of that sovereignty. Therefore~ research which wifl not diFe~~~ affect resource exploitation, rna~~~e~~e~t or ~onser~atjo~ must not be hindered. The deveIoping states’ perception that seiexltific research leads to technological advance only for those with the scierttific and technological infrastructurr? to utilize the knowledge gained is overstated. Marine scientific research will in the long term benefit all ocean users and may provide unforeseen benefits in the short term. For a state to deny the benefits of research to one m&ion simply because corresponding benefits wih not immediately accrue to itself is ~rea~onabIe and se~f-d~f~~t~~~.Where no threat is posed to the state’s mm dev&gmeaf, t&i2~~~~~t~~~ of sdth is ~~~~~~te~and its d~s~ibution prevented, This does not imply that a de~e~o~i~~ state may not have strung mo~~~tio~s to prevent such research because of memories of a coXoniaI past or a strong preference for short-term gains in response to social and economic needs, and political pressures. It is to say only that it is not ixlthe community interest. The final criterion for judging a regime governing the conduct of scientific research flows from the principle that all states have a right to ensure their own security in areas under their jurisdiction. A coastal state must have sufIicient authority to prevent any research of a military character which may pose a threat to their recognized interests in the area. ~~~~~~~e~~~o~~a~e 95 spfa floor, are necessary to evaksate -the ~~orm~n~e of sonar. The fact that ocsanic research in the USSR is st&controlled and the Office of i%V& Ae?;f;erch provides a significant amount of funding to US research institutions aan onlycontribute to this perception. WCC&I Mall;Oceanographic Institution rec@iVod 24.$%of its funding from the Off& of M~val Research in 1977. Woods NOI@

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The ocean is divided into %tnumber of jurisdictionat zones. Under current international law, 8s one moves seawards from one zone to another, the authority of the coastal state diminishes as that of the state under whose flag the vessel is registered increases, Traditionally, the jurisdictional zone8 include internal waters, territorial sea, #~~~~~~r~~~jc fn~titution AnnualRepor?, contiguous zone, fishing zones, continental shelf and the high seas. The ICNT would change this somewhat by the ~~t~~~~t~o~ of a 1377,

relatiyely

new

concept the exclusive ecunom~c xme

~~~Z~~

in

addition to new regimes gov~r~~~~ inte~~~on~ straits used for ~a~~~~~on~and archipekSgos* The regime governing each 5ont: has ~rn~~i~~t~onsfor the conduct of marine scientific research. ~~sc~s~~~~ b&w considers the present regimey but the primary focus is the returns contemplated in the ICNT,

The 3958 Convention on the Te~it~~~ Seaand the Con~gn~~s Zone defines intern& waters as ~nc~~d~~~rivers, Iakes, bays and other ar=s within the base~mes from which the t~~~tor~~ sea is rn~s~~d.~4 The b~se~~~~sare usudty rn~~r~ from the fuw-water fine aft;lng the coa,stPJ5but stra%ghtbasefines may be used in a number &cases, such as across bays where the distance between points on opposing shores is less than 24 miles.36 A straight baseline system may be used where the ~~~stl~~eis highly indented or there are offshore fringes of i&m& in which case they may be used to connect ‘appropriate points”.37 The; ICNT incorporates with minor changes the provisions of the 1958 convention on the Territorial Sea and the Contiguous Zone. Artide 4 ofthe 1958 Convention only permits straight baselines to be dram convecting low-tide devations where ~nst~~at~ons such as ~~~bt~~~ses~ which are ~~~e~t~~ above sea teve13are built on them. Article 7, ~~a~ra~h 4, of the ICNT on the other hand would make exception ‘in ~rcumstances w&m the drawing d ~~~~~~ to md from such elevation has received general ~nternation~ r~o~~ti~~~~ A~~tber departure from the ~9561 Convention is contained in Article 7, paragraph 2, of the ICNT, which provides that where a coastline is highly unstable because of a river delta or other natural condition, a baseline, once detormiued, will not change to r&ect subsequent regressions of the low-water line in the absence of action by the coastal state. ~~t~~~ internal waters the cllrtstal state exercises ~~s~I~t~ y equal to that exercised over its Iand territory, ~~c~~t where the use of ~ra~ht ba~~~~~s would result in the ~nc~~s~onof alter -that had previously been co~s~~er~ part of the high seas, in vrhicb c~tse, the right of innocent passage 1~31exist tberein3% The coastal state has discretion to deny or permit access to internal watts for any purpose, including scientific research. The chief importance of the regime; of internal waters is the m~t~~~ by which baselines are drawn, for depending on which baselines am chosen, larger or smaller areas ~311:be subject to more res~~~t,i~~ coasts1 state control, because the same baselines are used to mearjure the t~~~~t#rj~~ sea, the EEZ and the ~o~t~~enta~shelf. The present regime, as well as the ICNT, results in uncertainty over where these base&es WiII be tocated. The $958 Convention directs that str~~~~t baselines, when pe~~ss~bie~ shall connect ~a~~ro~r~~t~ points”, but fails to define the term.39 Artick 7, wraith 2, of the XCNT, which would not require ~h~~~~ in base’ines where there arc subsequent regressions in a highly unstable coastline3 is ~~te~~~d to prrrmote certainty and stability, bu&this is not likely to be the case in the: ~~~~~ce of a corres~nd~~~ ~~~~~ation on the coastaX state to refrain from cantinually adjusting the baseline outwards when accrctkms to the landmass occur. A more reasonable provision wouici

Oceanic research

be to aliow for periodic

revisions of the baselines sufficiently long duration so as not to be burdensome.

at intervals

of

Territorial sea For many years customary international law established the limit of the territorial sea at three miles. Recently, states have made more expansive claims. The 1958 Conference on the Territorial Sea and the Contiguous Zone failed by one vote to reach an agreement on a six mile territorial sea, and as a result the convention emerged with no limit.@ At present 32 states ctaim less than 12 miles, primarily three miles; 68 claim 12 miles, nine states between 12 and 5 1 miles, four between 5 1 and 200 miles, and 3 1 states claim 200 milesq4*The ICNT would establish the limit at 12 nautical miles consonant with the position taken by the majority of states.42 The sovereignty of coastal states also extends to the territorial sea, but it is limited by a right of innocent passage, which is that passage not ‘prejudicial to the peace, goad order and security of the coastal State’.43 Redfield notes that the definition of ‘passage’ anly includes navigation through the territorial sea to traverse it or to proceed to or from internal waters. it leaves doubt about whether some types of research would be permissible, 44 Anv_ question about this is removed by the provisions of the ICNT. Article 246 of the ICNT unequivocally grants complete authority to the coastal state over research activities in the territorial sea. As a function of their sovereignty, coastal states have ‘the exclusive right to regulate, authorize and conduct marine scientific research in their territorial seas’, and such research may only be carried out with the consent and under the terms set by the coastal state, While the authority of the coastal state over activities in the territorial sea is limited by recognition of a right of innocent passage,43 unlike the 1958 Convention on the Territorial Sea and the Contiguous Zone, the lCNT goes beyond defining innocent passage as that which ‘is nut prejudicial to the peace, good order or security of the coastal State’, and in Article 19 lists circumstances under which passage shall be considered prejudicial to these interests, Among these are ‘the carrying out of research or survey activities’.46 Hence the authority of the coastal state over research activities would be as expansive as its authority in internal waters. Straits 40NCcw. ” Coastal

79IsR.13,

1960, p 28.

State Maritime Claims, a Table prepared by MS Twin Hanson for William T. Burke, University of Washington s~h00i

of Law,

USA.

AUGUST

I

978.

‘* ICNT, Article 3. 43Territoriat Sea Convention, up tit, Ref 34, Article 14. 44 M. Redfield, ‘The legal framework for ocean research’, Wooster. ed, op tit, ReF 3, p 44. 46 ICNT, Article 17. *6 ICNT, Article 7, para 2(j). 41 US Department of State, ‘World straits affected by a 12 mile territorial sea’, Department of State Bdeiin. No 70, 1974, p 389.

98

Priar to the negotiations at UNCLOS 1x1 and the emergence of its various treaty texts no separate regime governing straits existed. With the incorporation of the 12 mile territorial sea into the ICNT it became evident that the universal adoption of this limit would result in the closure of many heretofore international straits. In fact, if all states were to adopt this limit, about 1 IS straits, which are more than six and less than 24 miles wide, would be totally enclosed within the

territorial seas of the bardering states.47 In an attempt to balance community interest in freedom of navigation and coastal state interests in security, control of pollution and the integrity of natural resources subject to their jurisdiction, the ICNT provides for a right of transit passage. Article 38, paragraph 2, defines transit passage as ‘the exercise of MARINE POLlCY April 1980

the freedom of ~av~gat~~~ and overflight solefy for the purpr>se of c~ntin~~~s arrd ~~~d~t~~~s transit of the strait’. The duties of ships during transit are outlined in Artick 39, paragraph f, which requires that ships “refrain from any activities other than those incident to their normzrXmodes of continuous and expeditious transit unless rendered ~~~~s~~~yby farce ~uje~re ar distress”. Although it is not inconceivable that a research state might argue that a particular type of data-gathering was incidental to the normal mode of continuous and expeditious transit, such argument would be ineffective in estabiishing a right to engage in research activities, because Article 40 states that ‘during their passage through straits, foreign ships, ~~~~~d~~gmarine scientific research and hydr~gr~~h~~ survey ships, may not carry out research or survey activities without prior a~th~r~~at~~~ofthe States bordering straits’_ Although Art& 40 expkitly grants the coastal state authority clver research activities, the scopt: of that authority is not defined. 1s the coastal state free, as in the case of internal waters and the territorial sea, to place any restrictions it deems desirable on research in straits, or is there any obligation, as in the EEZ and on the continental shelf, to allow research under ‘normal circumstances”‘? The right of transit passage is an exception to the exercise of sovereignty by states bordering straits. As stated in Article 34 the regime of passage through straits ‘shah not in other respects afxect the status of the waters forming such straits or the exercise by the States bordering the straits of their ~~ver~iguty or jurisdiction’. Such being the case, in the absence of specific restri~tio~s~ the coastal states’ authority must be assumed to be as broad as in the territorial sea. If limitations on coastal state authority had been intended, it is reasonable to assume that specific provision would have been made for them, as in Article 247 relating to scientific research in the EEZ and on the continental shelf.

4aJ.

Evensen, ‘Certain legal aspects concerning the delimitation of territorial waters of erchipelagos’. 1 UN Conference

on

the

Law

of the

Sea,

1959,

pp 297-299. ** D.P. O’Cannell, ‘Mid-ocean archipefagos in ~~ter~~~i~nai taw’, Br%sh Yearbook of ~~~~~a~~~R~~ La~z Val 45. 197 t, p 39. = mt pp 60-52, i3 &-We 46 of

the EN7 defkes an ~Arc~~~elag;c state‘ as a state ~eonst~t~ted whoffy by one of more archipakagoes and may include other islands’. This definition wouid exclude archipelagos, such as Hawaii, which erct not independent states but political subdivisions of non-island nations. 52 ICNT, Articl~l 49, para 1. w ICNT, Article 53.

As early as I955 the ~hi~~~pi~~g~v~r~rne~t Iaid claim to all water around, beady and ~o~e~ti~g the islands of the Philippine archipelago as inland or national waters.48 Indon~~a followed suit in 1957, claiming as internal waters those hither baselines ~o~~e~ti~~ the outermost islands of the archipelago.*9 Nevertheless, prior to UNCLOS III these claims were not widely recognized.5* To a certain extewrt the ICNT would a~~~rnrn~d~~~ these claims through the creation of a separate regime for archipelagic waters. The significance of the regime for scientific research lies in the inclusion of formerly high-seas areas within areas of national jurisdiction. Article 47, paragraph I, provides that an archipelagic states’ may draw straight baselines connecting the outermost points of islands and drying reefs provided that the main islands of the group are contained within these basements and the ratio of water to Iand within them does not exceed 9 : I. Paramaph 2 sets the maximum Iength of the baselines at I00 nautical mites, except that 3% of the basefines may be up to 125 miles in length. The waters wit~i~ these basefines are desig~~t~d as arGhipelagic waters and the archipelagic states’ sovereignty extends to themV5”subject to the right of ar~hip~~~gi~sea lanes passage.53 Archipelagic sea lanes passage is defined in Article 53 as ‘The exercise af the rights . . . of navi~~ti~~~and overflight in the normal

Oceanic research

mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone’ and another, In most respects the right is similar to transit passage in straits used for international navigation. The right is limited to certain identified sea lanes through the archipelagic waters54 with the right of innocent passage applying to other ~chipelagi~ waters.55 Coastal state authority over scientific research in archipelagic waters is complete. Article 54 provides for the application of Article 40 ~~~~~~~~~f~~dis to archipelagic sea lanes passage, therefore, no research or survey activities may be carried out in archipelagic sea lanes without the prior authorization. In archipelagic waters outside sea lanes, Article 52, paragraph I, establishes a right of innocent passage and, as in connection with the territorial sea, unauthorized research or survey activities are non-innocent, thus impermissible. This view of archipelagic state authority is also reinforced by Article 49 which provides that the sovereignty of the archipelagic state extends to archipelagic waters including the airspace, waters, seabed and subsoil and that the regime of archipelagic sea lanes passage does not in other respects affect the exercise of this sovereignty.

Exclusive economic zone (EEZ)

64 INCT, Article 53, paras 4 and 5. 55 ICNT. Article 52. para 1. 58 A Canadian-US ‘compromise proposal which would have provided for a six mile territorial sea with a contiguous six mile exclusive fishery zone failed to gain approval at the 1960 Conference by one vote, see M. McDougai and W.T. Burke, The Public Order of the Oceans, Yale Univ Press, New Haven, CT, 1962, p 548. 57 Fisheries ~~~jsdict~~n Case: United Kingdom of Great Britain and N Ireland v lcelaodff974), ICJ 3, para 52. 68 Of the states surveyed 16 claim 200 mile fishery zones. See Tables 1 and 2. 5s Of those surveyed, only the Bahamas, Brazil, Fiji and Japan claim jurisdiction over scientific research. soThe same vessels and equipment are often used for exploitation and survey activities. 61 USC 16, section 1802. 62 1977 Act no 10, section 2: and UN t3oc ST/LEG.SER.B/19.1979, p 68.

100

Coastal state authority over the water column beyond the territorial sea was recognized in Article 24 of the 1958 Convention on the Territorial Sea a.ld the Contiguous Zone which provided for a 12 mile zone contiguous to the territorial sea in which the coastal state could exercise authority to prevent and punish infringements of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea. Although the 1958 and 1960 Conference on the Law of the Sea failed to agree on the issue,56 customary international law prior to UNCLOS III had come to recognize the right of coastal states to claim exclusive jurisdiction over fishery resources in a zone up to 12 miles from the baselines from which the territorial sea is measured.s7 During the period between the 1958 Conference and the convening of UNCLOS III many states have made more expansive claims to exclusive fishery zones, with 200 miles representing a not uncommon claim.58 While only a few states explicitly claim jurisdiction over scientific research activities,s9 either directly or indirectly by defining fishing or fishing activity to include research or surveys, it is likely that such authority would be exercised where research is closely related to exploitation.60 This author, in surveying the legislation available, has been able to locate only two instances in which authority to regulate research is disclaimed; the US Fishery Conservation and Management Act of 197661 and the Guyanese Maritime Boundaries Act of 1977,6*but in the latter instance an EEZ was also claimed which included a claim to authority over research. Coastal state jurisdiction in the EEZ With the commencement of UNCLOS III the idea of an exclusive fishery zone was subsumed within the concept of an exclusive resource zone, the EEZ. Article 55 of the ICNT defines the EEZ as an ‘area beyond and adjacent to the territorial sea’. Article 57 establishes its maximum limit at 200 miles from the baselines from which the breadth of the territorial sea is measured. The rights and MARINE POLICY April 1980

jurisdiction of the coastal state in the EEZ are defined by Article 56 as including ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed and subsoil and superjacent waters’, and ‘jurisdiction with regard to , . _ marine scientific research’. Included within Part XIII of the ICNT are the Articles which relate to the conduct of research in the EEZ and on the continental shelf.63 These Articles have proved to be controversial. The controversy stems from two factors: first, that the provisions create a regime whereby the coastal state is given regulatory jurisdiction over scientific research out to 200 miles, which will result in about 35% of the world’s oceans being placed under national jurisdiction;64 and second, that the practical effect of the Articles is to allow the coastal state unlimited discretion to determine if, when, and under what conditions research in the EEZ will be carried out. Article 247 provides that in the exercise of their jurisdiction, coastal states ‘have the right to regulate, authorize and conduct marine scientific research . . . in accardance with the provisions of the present convention’. Article 247, paragraph 2, requires that scientific research activities ‘shall be conducted with the consent of the coastal State”, and paragraph 3 states that in ‘normal circumstances’ this consent shall be granted, provided the research project is To be carried

out in accordance with the present ~oo~en~oo excfusiveiy for peaceful purposes and in order to increase scientific knowfedge of the marine environment for the benefit of maukiud=6~

83 For the purpose of this discussion the EEZ and continental shelf are considered S~pS~ately.

Ocean Palicy Committee, 5p tit, Ref 19. See Figure 1 above. 66 ICNT, Article 247, para 3.

M

e*One commentator has expressed the opinion that ‘normal circumstances’ mean normal diplomatic circumstances, but she admits that thore is no solid authority upon which to base the interpretation. See M.H. Katsouros, ‘Comments on Section XIII, lnformat Composite Negotiating Text, Articles on marine scientific research’, in Ocean Policy Nationat Academy of Committee, Procediires fffr Marine Sciences, Scientific Activities in a ~~e~gj~g ~n~iro~rn~#t, S-l 1 January f 978, p 3 1. 87The Informal Single Negotiating Text is a predecessor of the ICNT. aaW.T. Burke, Scientific Research Articles in the law of the See: Informal Single Negotiating Text, Occasional Paper No 25. Law of the Sea Institute, University of Rhode Island, Kingston, RI. June 1975, p 13.

MARlNE

POLICY April 1980

Abnarmd circumstances. From the standpoint of one interested in engaging in research, what are the abnormal circumstances which would allow the coastal state to withhold consent?66 The text contains no criteria for making this decision. Article 247, paragraph 3, directs the coastal state to ‘establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably’, but it does not provide the content of these rules nor standards of reasonableness. The only provision for international standards is contained in Article 252 which requires that States . . . shall seek to promote through competent iut~ua~oua~ organ~~~tio~s the establishment of generat criteria and guidelines to assist states in as&erta~~ng the nature and implications of marine scientific research. As Professor Burke has pointed out in reviewing similar language contained in the Informal Single Negotiating Text,67 this is not likely to result in effective restraint on coastal state discretion.68 In the first instance an obligation to promote does not bind states to a particular timetable for the development of criteria. Second, assuming ‘;i competent international organization is agreed on and is successful in developing guidelines, there is no guarantee that the states would be bound thereby. The guidelines are intended to ‘assist’ states in making the determination_ This choice of language impfies that the guidelines would be in the nature of recommendations rather than mandatory standards. Lkcretion of coastal stute. In addition to the power to withhold consent under abnormal circumstances, Article 246, paragraph 4, allows the coastal state ‘in its discretion’ to withhold consent when it determines that the project:

101

0 0

0

ssThe interest is the pratection of the resources of the EEZ over which the coastal state exercises sovereign rights by virtue of Article 56. The coastal state is protect obliged to the marine errvironment by virtue of Article 193. 70Admitfedly the power to withhold consent where there are oustanding obligations may be a hardship on institutions in nations (primarily the USA) where research is con~dducied by private laboratories if one laboratory is refused access because of another’s failure. Nevertheless, all laboratories will be in this respect; vuk!erabfe equally therefore, the incentive will be tu meet all obligations. ” Article 250, para 2. allows the coastal state to establish regulations restricting the! dissemination of data where they could have withheld consent pursuant to Article 247, but nevertheless granted it. ‘2 M. Franssen, op tit, Ref 30, p 182. 73 For example, seismic surveys for the purpose of increasing knowledge about the geomorphology of the earth may identify general areas with favourabie structures for the formation and collection of oil and gas. Although this may no? have immediate significance, it may have direct significance in the sense that it may represent the first in an unbroken sequence of events that leads to exploration and eventual exploitation. WebsterS Third New World Dictionary of The English Language, 1967. defines ‘direct’ as ‘a. from point to point without deviation: by the short or shortest way b, from the source or original without deviation _,, d. without any intervening agency or step: without any intruding or diverting factor _’

102

is of direct significance for the exploration or exploitation of living or non-living resources; involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; or involves the use of artificial islands or structures.

Consent may also be withheld if inaccurate information regarding the nature and objectives of the research is provided or the research state has failed to meet obligations arising from its prior projects. In principle, vesting the coastal state with authority to withhold consent under these circumstances is a recognition of its vatid interests in the protection of the resources under its sovereign control. In addition, the coastal state has an interest in, and is responsible for, the protection of the marine environment from the threat of pollution. 69 It is not difficult to imagine circumstances where drilling, blasting, the use of toxic chemicals or the construction of artificial islands might jeopardize resources of the EEZ or pose a serious threat of pollution. Without information on the nature and implications of a research project, a coastal state has no basis on which to determine whether the project is permissible, and without the threat of rejection of future projects a coastal state would be unable to enforce obligations arising from current projects.70 Finally, where research is objectively determined to be of direct significance for natural resource exploration or exploitation, the coastal state should be free to prevent research or restrict publication of results,” to prevent poaching where it lacks a credible enforcement capability, and to prevent the information from being used to its disadvantage when negotiating with other nations or multinational corporations concerning the exploitation of its resources.72 Recognition that protection of these interests is warranted should not, however, lead to the conclusion that granting the coastal state absolute discretion to determine whether a particular research project falls within one of these categories is justified. Nevertheless, Article 247, paragraph 4, authorizes coastal states ‘in their discretion’ to withhold consent in these circumstances, and the dispute settlement provisions of Articles 265 and 296, paragraph 3, provide that a coastal state shall not be obliged to submit to dispute settlement any dispute over ‘the exercise of a right or discretion in accordance with article 247 . . .‘. In particular, determination of whether a project is of direct significance for the exploration or exploitation of natural resources poses a serious threat to continued access to waters of the EEZ for research purposes. In the first instance, there may be differences of opinion in good faith on the issue b regard to a particular project.73 Second, this problem is compounded by the suitability of this determination for use as a pretext for withholding consent. As noted above, the exercise of discretion by the coastal state is not subject to dispute settlement. Determination of whether a state which desires to engage in research activities has outstanding obligations from past research projects is also susceptible to abuse. The limits of these obligations are not clearly defined in Article 250, nor is there any requirement that the coastal state should report periodically on its view of the status of the fulfilment of the obligations. Thus a research institution

MARlIME POLtCY April 1980

may find its request for access refused, based on determination by the coastal state that it, or another national instit~t~un, had failed to meet obl~~at~o~sthat they, in good faith, believed had been met7*

f4 Comments of Warren S. Wooster, Institute for Marine Studies, University of Washington, USA, 6 April 1979. ‘$ Article 254, para 1 (a); Article 247, para 4(d) would &so allow consent to be withheld jn~t~s~~~. 78W.S. Wooster and Nt.D. Brad&y, ‘Access r~~~~~rne#ts of ocean research: the scientists’ perspective’, in Wooster, ed, up cit. Ref 3, pp 29-30. “Simik~ changes should be made in Article 247, para 4k% 78 Informal proposal by the USA, Amendments to the Texts an Marine Scientific fl&ww31 and the Transfer of A./CONF.62/v.l0, 1978, Technology, p 190.

Duty to provide information The ICNT imposes a duty on the research state to provide certain information concerning the project tn facilitate the coastal state? decision to grant or withhold consent, Article 249 requires that, six months before the anticipated starting date of the project, the research state should provide a description of the nature and objectives of the research, the means to be used, the orographical areas in which the research will be conducted, the dates of arrival and departure of the research vessel, the name of the institution and the person in charge, and the extent to which it believes the coastal state should be plowed to participate. This information is necessary to determine the nature and implications of a particular research project. However, the power to require the cessation of a project when this information proves inaccurate75 provides a state, intent on prohibiting research p~rrn~ss~~l~under the terms of the ICNT, with another means to do so. ArticIe 254 provides that the coastal state may require cessation of research activities if the research project is not being conducted in accordance with the ~nfo~ation initially communicated pursuant to Article 249. If this is interpreted ~~t~~~lly~ modi~cation in the itinerary or the means used for conducting the research would be grounds for a termination order. This is true r~~~~dl~ssof whether the coastal state was notified of the changes or whether the changes were such as to transform the project into one that the coastal state could prohibit under Article 247, paragraph 4. Article 254 ignores important operational aspects of marine scientific research. Ships are sub.ject to breakdowns, early observations may indicate the need for more detailed ones or the fruitlessness of further ones in a particular area, all of which may require changes in the itinerary. Oceanic conditions are continually in flux and the proper conditions for research do not necessarily observe r~searcbers~ t~metables.~~The Article would be more in keeping with the purpose of the Section if it were amended to allow the coastal state to require cessation if consent could have been withheld pursuant to Article 247, paragraph 4, had the project programme been proposed as modified, or to allow temporary suspension pending review if the changes were otherwise af a substantial nature.77 At the resumed Seventh Session of UNCLQS III in New York in September 1978 the US delegation submitted informal suggestions for changes in the text of Part XIII,78 one of which was an amendment to Article 254. The proposed change would place the emphasis on securing compliance with the research programme as outlined in the information provided pursuant to Article 249 by allowing the coastal state to require ‘suspensiun’ rather than ‘cessation’.

In addition to the duty to provide information, the ICNT, in Article 250, paragraph 1, also imposes a duty on the research state to cornply with the following conditions: *

ensure coastal state participation or representation, if desired;

*

provide, on requesb preliminary reports, final rest&s and conclusions ; 4B undertake, on request, to provide access to data and samples, and to furnish an opportunity to copy data and share samples; Ir assist in assessing the data and samples if requested; # ensure that results are made internationally available; W inform the coastal state immediately of any major change in the research programme; * remove equipment or installations once the research is

‘* Co~s~~eri~g the add~tjo~a~ burdens these obligations impose, it is ironic that many of them were drawn from a set of Draft Articles tabled by the US delegation at the July 1973 ore-conference session af the UN Seabed Committee in an attempt to weaken the movement towards a full consent regime. Draft Articles for a Chapter on Marine Scientific Research, AfAC.13SfSC.lll/L.44, 1973. a0W.S. Wooster, ‘The decline of marine scientific research’, Marine Technology So&ty Journal. WIav 7 976. 81This was conducted by Conrad Cheak, head of the Chemical U~eanogra~hy Branch, Ocean Sciences Division of the Navai Research Laboratory USA. e”fhat is the requirements would be acceptabte only under e~traord~na~ circumstances, or unacceptable under any circumstances. 8~ C. Cheek, ‘Law of the sea: effects of varying coastal state controls on marine research: a survey of the US ocean science community‘, Ocean ~e~e/o~me#~ and lnternatiorwl Law Journal, Vol 1, 1973, pg 209-217. 84A substsntial number @O-40%) of negative responses were received in response to requirements involving the foltowing: {a) jurisdiction over raw data andior samples; fbt ~ub~i~atjon ri~~~~~~~ substantial additionat time expense; td) substantial m~~~~ation of research plans. See Cheek, op tit, Ref 83, p218. nsArticle 250. paragraph 2, is not timited to restrictions on publication but would allaw any additional restrictions. If the nature of the research is determined on an objective basis there is no danger that restrictions will be used to frustrate the project because consent could have been denied initially.

These obligations will impose substantial burdens on those engaging in research activities in the EEZ of another state. Some commentators have complained that such obligations may result in critical research not being eonducted.sO Yet an interesting surveys1 indicates that of 24 different requirements suggested, all of which were variations of these obligations, in only two instances did a majority of the US scientists surveyed respond negatively. 82 The scientists responded thus where they would be required: to acknowledge the right of the coastal state to restrict the distribution of data; or to permit custody and control of ~o~~~pli~ated data or samples by the coastal stateeg3 This is not to say that other obligations cited did not meet with serious objections,@ but it does indicate that these ob~igatious, reasonabiy interpreted, wound not necessarily have the &at~strophi&effects foreseen by some. A more obje~tionabIe obligation is that which results in complete coastal state control over the publication of data and results. Article 250, paragraph f(e) requires that the research state ensure, subject to paragraph 2, that research results are made internationally available. Paragraph 2 states: This article is without prejudice to the conditions established by the laws and regulations of the coastal State for the granting of consent where the coastal State not~it~§taad~~g the provisions of Article 247, nevertheless grants its consent to the project in question.

The effect of this paragraph is to allow the coastal state to control the publication of data or findings in cases where it would be empowered to ~thhold consent by the terms of Article 247, but has nanethefess decided to permit the research activity,. In principle, there should be little objection to this arrangement. If a coastal state is free to withhold consent for a particular research project because it is of direct significance for resource exploitation, or involves the use of explosives or toxic chemicals, but chooses to allow the research to proceed, it should be free to condition its consent on any restrictions reasonably related to the concerns that would allow consent to be w~tbheid, ~n~~udin~ restrictions on pub~i~ation.g~ Nevertheless, the restrictions are not limited in this way, and, when coupled with the unreviewable discretion of the coastal state to determine the nature of research for the purposes of Articfe 247, paragraph 4, this arrangement would allow the coastal state to place additional restrictions on virtually any project. Among the proposed amendments submitted by the US delegation at the Seventh Session was one designed to eliminate the difficulties posed by Article 250, paragraph 2. The words ‘subject to paragraph 2 of this article’ would be deleted from paragraph l(e), and paragraph 2 would be redrafted to provide that if a coastal state decides to grant consent for a project related to the exploration and exploitation of

Oa?anic ~~~~~~

Ilt3tUFd

U.%SUUFCeS, it

33XFf

Feqtire

j?FiUF agF~ment

023

reasonable

&u~djtiu~sfur pub~i~a~un *86This wuu~d effectivefy ltir the au~ority uf the coasEal state to imposerestri~tjun~ other than those c??J puh~j~atjunin cases where the research project would be related to natural resource exploitation. The amendment is unacceptable im that it t%ilsto admit that additional ~~$t~~~tiousmay be desirable in other cases where the coastal state would be free to withhold consent. For exampIer if explosives are to be used, the coastal state might desire to place restrictions on where, when and how they are to be used to ensure protection of resources, underwater installations or navi~~~i~~~ ~~rni~~~ ~~str~e~onsmay be neeess~r~ where harmful substances are in use: or artiikiaf Sands are being c~ns~r~ct~* If the coastaj. state is not free to impose add~~on~ r~~ct~~~s it wSf be inclined to ~th~o~~ consent for the project. A more a~~r~pr~at~ approach would be to ~r~~~d~ that addition& res~ict~~~s must be dire&y related to the cha.racteristics of the project which would have justified the withholding of consent. The other obligations contained in Article 250, paragraph 1, may be justified in principle, but their application by the coastal state may be objectionable in specific ~~~~~~st~nces* eg the obligation to provide final results and conclusions after the completion of the research. The coastal state may demand these immediately, but the ~~~~a~~~ of data may need to await data from other projects. ~~rn~~ar~y~ the coastal state may require that a scientist spend a period of time at one of its ~aborat~~~s t~~~in~ its scientists to inteqxet aBd evaluate the data or demand a high kvel of t~hno~o~ca~ assistance as part ofthe obligation tu help it assess the data,. Lack af brternationalst~~~~~~~ Unless there is effective provision for the formation of international standards regarding the scope of these obligations or mandatory dispute settlement of controvessie$ rega.rding them, coastal states may prevent research in the EEZ simply by interpreting these obligations in such a way as to piace irn~e~~t~~b~~barriers in the path of states desirous uf~ngag~ng in research. The text contains no ~rov~s~~~for ~~te~a~ona~ st~dards~ Artkk 252, which obviates states to promote general criteria and ~~~d~~~~~s ~~o~~b ~~te~at~on~ ~g~~~at~~~s, onfy pertains to ~ascert~~~~~ the nature and impkations’ of research activity which would not appear to encompass defining the scope of the obligations of Article 250, Ass~~i~~ it did, the effectiveness of Article 252 in ensuring h~~~~~~ international guidelines is seriously Suspect.87 Article 256 directs coastal states to adopt ‘rules, regulations and administ~~t~v~ procedures* applicable to those desiring to engage in research activities for the purpose of faciii~~ti~~ such research. Although they must be ‘reasunable and ~~forrnl~ ~~p~~~~*this is not an ~ff~~tiv~ constraint on a coastal state d~s~r~~~ to arb~~~~y fru~at~ a ~a~~~~~r eSort_ Firs;, the re~~~r~rn~~tof uniform ap~~~~~o~ does not chmge the fact that the s~c~~~atjo~ of what is needed to cornily v&b the Article 250 ob~~g~t~~~smay vary sign~~c~t~y From ofi; reseztrch project to another. Second, the coastal state’s application of the rules and regulations, as well a$ their content, is insulated from l%YkW. *’ i%pa~~d us amendments, p 193. See discussicrn af Article 252 above.

”

Article 254 empowers a coa;rstal state to require cessation of research if the duties outlined iu Artick 250 are not complied with,

Oceanic research

Assuming the state has adopted rules and regulations in respect of these duties, their violation would be grounds for the coastal state to demand cessation of research, and Articles 265 and 296, paragraph 3, free the coastal state of any obligation to submit to dispute settlement if the decision is challenged. The major deficiencies in the regime governing the conduct of s~ienti~c research in the EEZ are the ~ithdra~v~ of any decision to withhold consent or require the cessation of research from dispute settlement and the absence of effective provision for international standards for defining: (a) the nature and imp~ieations of research for the purpose of Article 243, paragraph 4; and (b) the scope of the obligations imposed on research states by Articles 249 and 250. Under these circumstances the coastal state is free to interpret its own duty to grant consent and research state obligations as it pleases, giving it defactt, veto power over any research project.

BB Proposed US esIbid,p 193. s0Ibid,p 190.

amendments, p 192,

s1 Ibid, p f 93. exercise of ‘discretion’ is not involved.

e2Far the

US proposab The amendments proposed by the US delegation inctude several that are directed at these deficiencies and their consequences. A new Article 244 was proposed which would place an obligation on states not only to ‘promote’, but also to ‘establish’, internatio~~ standards to facilitate consent for research involving several coastaf states, which is of importance to the international community, In addition, a new Article 242 was proposed which would obligate the coastal state to provide other states with ‘a reasonable opportunity to obtain from it, or with its ~~~ratio~, information necessary to prevent and control damage to the health, safety, and e~v~ronm~nt~ of other states.** The purpose is to ensure that data will be gathered and disseminated on trans-boundary phenomena that threaten damage outside the coastal state.89 The crucial clause is ~opportu~ity to obtain from it, or with its cooperation’. This formulation is broad enough to encompass an obligation to allow the conduct of research, and would not be limited to the provision of data already collected, if that data proved ~~su~~ient to prevent or control the damage. From the standpoint of community interest these Articles represent a considerable improvement over the present text. They recognize the regional and global nature and significance of much marine scientific research, and increase the likelihood that vital research of this character will not be obstructed by the consent regime. At the same time coastal state interests are protected because research projects are still subject to the obligations of Articles 249,250 and 254. Article 247 would also be amended to provide that the coastal states have ‘jurisdiction’ as opposed to ‘in the exercise of their jurisdiction the right’ to regulate, authorize and conduct research. In addition, a new section would be added to make clear that lack of diplomatic relations alone would not provide the basis for a conciusion that ‘normal circumstances’ did not exist ahowing consent to be withheld.‘O The concern over the use of the term ‘right’ is that it may withdraw ah issues concerning scientific research from dispute settlement by operation of Articles 256 and 296 because all exercises of a ‘right’ or ‘discretion’ in accordance with Article 247 are withdrawngl The proposed formulation would prevent the withdrawal of disputes over a claim that a particular research activity unjusti~ably interferes with activities undertaken by the coastal state,9Zor disputes arising out of a

ta dow research for reasons other than those spanked in Part XIX& The proposal to eliminate cons~der~t~~~ of a lack of d~p~om~t~~ relations in determining whether ‘normal circumstances’ exist stems from the fact that although a lack of diplomatic relations is often the result of a deep-seated animosity, whether of a political, economic or cultural nature, it is not universally the case. Where a lack of diplomatic relations does not reflect strained relations research should not be obstructs. Article 250, paragraph l(d), would be amended by the US proposal. Instead of obligating the research state ‘to assist the coastal State in assessing3 the data from ;i project, the proposal would require onfy that the research state shooed provide an assessment on request 93 This forrn~~at~~~would not ti open to the as soon as pra~t~~ab~e~ expansive ~~t~~retat~ons of the present text. It is unlikely that it would encompass demands that a scientist spend substantial time at a coastal state laboratory training local scientists, or dern~~~s for substantial technical assistance, One of the more significant proposed amendments is that which attempts to limit the discretion of eoastat states regarding the cessation of activities already under way, From Articie 296, paragraph 3(a), on dispute settlement, all references to Article 254 would be removed. The effect of these changes would be to e~irn~~at~ the excfusiun of decisions by the coastal state to stop research activities frum dispute settlement. As discussed above, much of the coastal state discretion in de~ni~~ the scope of duties under Articles 249 and 250, and resultant power to frustrate any attempt to carry on research, flows from the exclusion. The coastal state could still ~tbbo~d consent on a subjective basis, but once the consem was granted they could no longer use strained interpretations of Articles 249 and 250 obligations to frustrate itSY” The most desirable solution to the problem of unreviewable coast& state discretion would be to eiiminate all exclusions of exercises of “discretion’, as welt as exercises of a ‘right’, from the dispute s~tt~erne~t pro~sions~ However, it is very unlikely that developing coastal. states win permit this to occur. The Paramount concern of the developing coastal states is how research wilI affect resource development and military security. fn the case of resource development, the treaty grants the coastal state sovereign rights for purposes of exploration and e~p~oit~ti~n. Traditionally, states have been very reluctant to transfer to third parties the power to make final decisions that will affect sovereign rights or military security within areas under their jurisdiction. It is likely that recognition of this r~~u~~a~~~is what prum~ted the US ~~~~gat~o~to focus on: refusal

rrme

could be lost bfmmse of the involved in ~~~s~i~~ the dispute settlement wocess, but the knowiadne that its becisions are subject to review may Drovide the incentives not to take ~njuatif~a~~~ decisions. The desire to be perceived a~ a law-abiding nation and to avoid retalii3W7, should not be underestimated3

*

*

li~~iting the exercise of discretion in particufar areas such es p~b~~~atio~and data ~s~ssrne~t~ ~irn~t~ngthe exclusion from dispute settlement to exercises of ~d~s~ret~o~~~ $~irn~nat~~gthe exclusion of decisions to require cessation of a project; strengthening the provisions to require international sta~d~~~s for granting eonsent to researeb of interest to more than one state, and ensuring that information necessary to the health and safety of other states will be forthcoming.

Despite the relatively modesty of the US proposals little support was forthcoming during the resumed Seventh Session and the first stage of the Eighth Session. Although the European Economic Community (EEC), Australia, New Zealand, Israel and Mexico responded favourably during the resumed Seventh Session, the USSR, Eastern European countries and 35 developing countries remained adamantly opposed. 93The situation did not change appreciably at the first stage of the Eighth Session in Geneva. The Chairman of ~omrnitt~ III, Ambassador A. ‘Yankov, ~~~c~~d~ in his ~orn~tt~ Report that the XCNT &lf comm~ded ~s~b~t~ti~ supp~rt’_~~ At the resumed Eighth Session in New York fI6 ~~~~-~~August 1979) this situation was to change, and negotiations on a number of the US proposals resulted in compromise formulae which Ambassador Yankov believed to represent improved prospects for consensus.97 The first of the amendments approved in the Chairman’s report would add to Article 242 a coastal state obligation to provide other states ‘when appropriate’ with an opportunity to obtain from it or with its cooperation info~mat~~~ necessary to prevent d~rn~~e TVthe he&b and safety of persons or the en~ronrn~~~~ The q~~~f~ng langsage weakens the ~b~~~~~o~~ ~e~~ertheless~the change represents an improvement over the previous text. The Chairman’s report afsn adds a new Article 246 &is,[a) of which makes it clear that a lack of diplomatic relations alone does not necessarily mean that "normal circumstances’ do not exist which would entitle the coastal state to withhold consent for B research project.99 This would ensure that such consent would only be withheld when relations were actually strained. A major improvement in the area of restrictions’ on publication is represented by an amendment which would alter the ~bl~~~~o~s of Article 2X+_While the coastal state would still be free to ~~~~di~u~its consent on addi~on~~ rest~i~~uns where it had tke d~seret~o~ to withhold consent, restrictions on ~ubIica~on would be limited to projects ‘of direct ~~i~c~~~e for the exploration or ~x~~o~~atio~of $3~a~~~~ of the United statesue~e~e~~o~. natural resourcesz.lOa Swenth Session of the Third Wited Another major amendment would modify the obligations of Article AWkms Conference on the faw of t/w 254 to provide for ‘suspension or cessation’, as opposed to cessation g;!W&National Academy of Sciences, Committee meeting, alone, where research activities are not being conducted in Policy documents, June 1973. accordance with the information on’which the consent of the coastal BBQJWal Records: Third United Nstims state was based. In addition, the decision to suspend or cease could C=onf&mce on the Law of the Ses, only be taken if compliance were not achieved within a reasonable Seventh Session, Vol X, +VCONF,62/v IO, 197&p 176. time.lO’ ST~C~~~.~2~~4~_ 1979, p 2. At the end Fir&y, the ~~~ga~~~~ of &Me 250, paragraph I(d), would be alter& to require that a research state? on request, provide an of data, samples and results or assist in their tex? the provjsiwssr&ating to marina assessment scimtifk researchwefe renumbsre~ so inte~retat~on- IaLThis ~~~~~~~~da&es the obi~g~tio~ uf the research that 247 of the iCNT would correspond to state and thereby avoids thi: shortcomings of the previous formulation 248 of the fCNT/Rev 1 and 248 to 247, which might have allowed for excessive coastal state demlrnds. B~P.To avoid confusion, in discussing the ch~ges in the text brought about at ths These modifications represent a considerable improvement over the Eiglhth Session. the author has ret&red provisions of the ICNT. However, important deficiencies remain, ths numbering of the ICNT. Coastal state discretion in applying the criteria of Article 247, Or4 Ibid, Annex, p 1. 99IlrM. paragraph 4, in taking a decision whether to approve a project, and its application of the principles relevant to a decision to require suspension or cessation cf 8 project remain essentially urrreviewable.

h-t

~~~~~M~~~

to k&k

247

%WS Z%@X-WGXi, 3%&i&

WoSM

~~~~~~

the

order to the co~~~lj~tio~procedures of Annex IV, i03However, this does not provide an effective restraint on a coastal state determined to frustrate a prqlect. In addition, there remains the absence of an obligation to develop international standards to guide a state in its application of the principles relevant to granting consent or the decision to terminate a research project. ~~~~~~~~~

of &S@SZS

oxw

a ~~~~~~~~~~

or

cessz&on

Article ‘i ofthe 1958 ~on~e~~~~ on the Continental Shelf de~~~~ the conti~~~t~ shelf as ‘the seabed and subsoil of the submarine areas adjacent to the coa& but outside the area of the territorial sea, tu a depth of ,200 meters or, beyond that limit, to where the depth of the superj~ent waters admits of the exr>loitation of the natural re%?urces of said area’. Under Article 2 af the Convention the coastal state exercises ‘sovereign rights for the purpose of exploring it and exploiting its natural resources’. The Convention contains two provisions specifically directed at scientitlc research. Article 5, paragraph 1, provides that “the exploration of the continental shelf and exploitation of its resources must not result in any . . . ~~te~f~r~~cewith fundamental oeeanographic or other scientific research carried out with the i~t~ti~~ of open ~~b~ca~on~~However, Article 5, ~ara~a~h 8, states: TJX eoasene d &zzCW&ziIstate &all be &&&XX3 in r%?qX2Ct of my r%%WWCh concerningtie continentd shelf axi undertaken there. Neverthefess the ~ocx~tttl Statc3 shall not normally withhold its CCWISC~~ if the request is submitted by H qualified institution with a view JO purely scientiAc research into the physi~rxl UT biologicaX characteristics of the cantinerxtcrl shelf, subject to the proviso that the coastal State shall have the right, if it so d&n%, to participate or to be reprcsentcd in thd research, and that in any event the re~lta shall be published.

Essentially, the provisions established a consent regime with a duty IL)R the part of the coastal state to ~~~rn~l~~ grant permission where the research is of a fundament~ nature and the results will be ~~~l~s~~~Brat there are problems that have arisen in ~nte~r~ing terms such as ~~orrn~ly~ and ‘qual&d ~nst~t~tiun’~as well as wheher research ~c~~~~~~i~~ the shelf and ~~~~rt~en there’ includes research conducted in the water column, or whether actual contact with the shelf is necessary. lo4 Another source of difficulty is the failure to define precise limits for the continental shelf. The language used in Article 1 does not make it clear whether the limit is to be determined on the basis of technical feasibility or economic viability of exploMon.

*a3I&“& Ar?t-l$X~ p 3. lQ*Agood dlsoussion of these pmblems maybe found in Redfield, op cif, Ref 44, pp 52-58. 1x8 question of precise limits what COMItitlJtas shelf research are issues that BTB also problematic in the ICNT Provisions, See discussion below. and

s&&k research Newxtheiess ~~~~~~247 tlf Part XIII (the generaX Articles relating to scientific research) specifically states that cnsstal s&&s “In. the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in the exclusive economic zone and on the continental shelf. In light of this clause, no significance should be attached to the omission in Part VI.

The conduct of scientific research on the continental shelf is subject to the same regime as research in the EEZ. By their terms all provisions of Part XIII which apply to the EEZ apply to research conducted on the continental shelf, thus the problems encountered are the same. Under the US proposal for amendments to the text of the Articles on marine scientific research the regimes would diverge. A new Articfe 258 would require application of Articles 249 and 250 ‘~~~~~~~~~~~~~~~ to marine scientific research that is of direct ~i~n~~~an~e for the exploration and exploitation of the natural resources of the Continental shelf beyond 200 nautical miles’, and references to the ~ont~~e~tal shelf in Articles 247-250 and 254-256 would be removed. Research on the continental shelf beyond 200 miles would no longer be subject to coastal state regulation nor would the consent of the coastal state be required. Compliance with the obligations outlined in Articles 249 and 250 would be required, but only when the research was of direct significance for the exploration and exploitation of resources of the shelf. Such a change would be an improvement over the present regime. The only recognized coastal state interest in this area is in the exploitation of shelf resources, and research related thereto would be subject to the duties outlined in Articles 249 and 250. The coastal state interest in preventing actual ~x~lorato~ research related to natural resources is guaranteed by Article 81 which grants the coastal state the exclusive right to authorize drilling on the continental shelf.iaS A compromise was approved by Chairman Yankov at the resumed Eighth Session. A new Article 246 bis was added, (13)of which provides that exercise of coastal state discretion to approve projects would be deferred and consent implied for projects outside specific areas beyond the EEZ which the coastal state has designated as areas where exploitation or ex~l~~a~~ry operations are occurring or are about to occur.zIMThe research state would still be required to comply with the notice and information requirements of Artide 249 and to undertake the usual research state obligations contained in Article 250; ie provide for participation by the coastal state, preliminary reports, data assessments etc. Two problems

Two unresolved problems concerning the continental shelf which have important implications for scientific research activities are whether shelf research includes research in the water column, and the method for delimiting the seaward limits of the continental shetf.

lQSl”ha anly resources MI the outer fringes shalf are gas and

of current intsrest of the contitwnlal oil, and although developing rapidly, the technology ia not available for economic exploitation. ‘CMap tit, i?ef 97, Annex, Q 1. Redfield, op C& Ref 44, pp 54-55.

yat

lo7

,%erf ~es~~~~~_The problem of what constitute shelf research is the result of a failure of the ICNT to define what is meant by the phrase ‘research . . _ on their ~o~t~~e~tal shelf. Interpreting similar language contained in the 1958 Convention, both the USA and the USSR have taken the position that there must be physical contact with the shelf.lo7 The thinking of most states in this regard remains unclear, and there has been no mention of the issue in the published discussions of Committee III. One state, however, has enacted legislation, the language of which contains an implication that they do not hold such a limited view of what constitutes shelf research. The Royal I?ecree of Norway, 31 January 1969, establishes rules

residing the CmdUC~Qf scienac resewck fernEmra1 resourcesun their ~~~tj~en~~ skf, wkich re~ujres iicensesf-r rna~a~c~ gra~j~~ricor seismicswveys - none of wkick requireactuaf physical contactwith tke shelf, Assuming tke adoption of the ICNT im cu Anal

treaty, this issue wawld only have significance where the camtimsntal shelf extends beyomd 2QQ miles. Nevertheless it is somewhat curious that the issue has received little attention.

group of .&&I 818tes which would maximuf’t’l lk?“~itof 2OQ miles.

se+ iy but it has

received littl6 ?3~pporI; see A/CONF. NG 6/Z, 1977. It may be possible to attribute this lack Of %.lppQrt to a perception by other states “rhatthe Arab proposal is art attempt ta timit competition from the productiart of ail, w&?&hmay occur in fhe future, If areas beyond 200 mifes are narioi& incf*rCM wMin resource jur~~~~~~~~ s* ~~~~. ~~~i~~~~ ~ee~~n~~~~~ 5 977. 17Tfhird UN Ganference on the the Sea, Offk%d Records, Vol 10, to the Piansry by Ambassador (Venezuela), Chairman of the Committee, .A/CONF, %2/v.l0. pp 84 and 184,

Law of Report Aguilar Second 1978,

c33xxtinentalslope; @ or by a line connecting points, not more than 60 miles krux”xrr. the fcrot of the continental slope, and not more than 60 miles from each other. In the ab$ence of evidence to the contrary* the foot of the continenta! slopa woufrf be at the point of maxSmum change of gradient at its base, Finally, tke proposal would create a Continental Sk&f ~~~~~~ Commission for tke purpose of certifying the ~~~~~~~ ela~~~d=~~~ 8% tkS2cBm@&on BF &e Se&on Tie ag~rne~~ &ad &en reacked on %keiss~e_=~ 23owever, at tke E&$&k Session in ~~~~~, I9 ‘March-27 April IW9, Ambassador Aguilar, Chairman of Negotiating Group III, suggested I compromise proposal which combirvred the options of the Irish proposal with an absolute limit sirdar to the USSR proposal. Under tither option the outer limits wf the continental shelf could not exctead 350 miles from the baseline

Oceanic

research

used to measure the breadth of the territorial sea, or 100 miles from the 2 500 metre isobath. The original Irish proposal has been severely criticized as unworkable by one commentator and the same criticism applies to the compromise proposal. Hedberg has argued that the “thickness-ofsediment’ alternative is simply impracticable. Among the reasons cited are: 0 a a 0 0 *

lack of sut%cient information on sediment thickness; irregularity in distribution of sediment thicknesses~ the gradual nature and directional variability of change in sediment thickness; the intermingling of igneous and sedimentary rocks; the possibility of deep underlying sediment strata; the cost of deepwater drilling.112

Ambassador Aguilar’s compromise also includes provision for the creation of a Boundary Review Commission which would review evidence presented in support of particular states’ boundary claims.‘13 However, the text of the proposal was criticized at the resumed Eighth Session for granting the coastal states unlimited discretion in delimiting its boundaries. rr4 Unless the Commission is given a clear mandate to review the data presented in favour of a particular boundary and to have a stronger role than merely to recommend a boundary, the uncertainties inherent in the application of the boundary formula could well have that result.

High seas

ltZ n.o.

iiNrberg.

boundaries’P Science, pp 138-139. “30pcit. Ref ltl.

‘WUS

Eighth Nations

Sea,US

‘UcEtaFl floar f3

April,

1978,

Delegation Report: Resumed Session of the Third United Conference on the Law of the

Department of State, 1979. ‘Is ‘Commentary on Draft Article 2: International Law Commission, report to tha General Assembly. Yearbook of the International law Commission ii. 195% p 287. ‘I*ICNT, Article 87.

The high seas are defined in Article 1 of the 1958 Convention of the High Seas as ‘all parts of the sea that are not included in the territorial sea or in the internal waters of a State’. Article 2 states that the high seas are open to all states and that no part may be subjected to the sovereignty of any state. Article 2 also states that freedom of the high seas may be exercised according to these Articles and the rules of international law. High seas freedom is stated to include, inter alia, the freedoms of navigation, fishing, laying of submarine cables and pipelines and overflight, Aithough scientific research is not explicitly stated to be a high-seas freedom, the list in Article 2 is not exhaustive, and freedom of scientific research has always been considered to be a high-seas freedom, limited only by the principle that in the exercise of any high-seas freedom states are bound to refrain from acts which may adversely affect the use of the high seas by nationals of other states.’ Is Article 86 of the ICNT indicates that the high seas are that part of the sea which is outside the various other areas of coastal state jurisdiction. The traditional freedoms of the high seas are carried over into the ICNT by Article 87 and they include ‘freedom of scientific research, subject to Parts VI and XIII’. But research, as well as other high-seas freedoms, must be exercised with due consideration for the high-seas freedoms of others and the rights under the Convention with respect to activities in the Area. 116Article 258 of Part XIII also confirms the existence of the right to carry on scientific research in the water column beyond the limits of the EEZ. There are circumstances under which this right may be restricted. The freedom of scientific research is subject to Part VI and Part XIII.

Ocealric research

Part VI’s provisions grant the coastal state sovereign rights for the purpose of exploring for and exploiting the natural resources of its shelf, and in couj~nction with the provisions of Part XIII ensure the coastal state compkte authority to regulate research on the continental shelf. Because there are areas where the continental shelf may extend far beyond the 200 mile EEZ, there may be situations where research on the high seas may be characterized by a state as research concerning the continental shelf, and, therefore, subject to coastal state jurisdiction. ’ I7 One can also envisage circumstances where the exercise of the right to engage in research in the water column on the high seas would come into conflict with activities being carried out by the proposed Internation~ Seabed Authority of those under contract with it. In such circumstances the only guidance is contained in Article 147: 1. 3.

Activities in the Area shall be carried out with reasonable regard for other activities in the marine environment , . . [and] Other activities in the marine environment shall be carried out with reasonable regard for activities in the Area.

No priority is expressed nor is the Authority given the power to decide the issue, but the jurisdictional grant to the Sea-Bed Dispute Chambers of the Law of the Sea Tribunal is broad enough to encompass any dispute over conflicts.‘i8

The Area

*” See discussion of the question above. *‘* ICNT. Article 187. oara 2(d). ‘Is UN .General Assembly Resolution 25740.15 December 1969. I** UN General Assembly Resolution 2749 (XXV), 17 December 1970. ‘*’ ICNT, Article 1. para l(1). e2 Its operational arm. See ICNT, Article 169.

MARfIVE POLICY April 1980

The fCNT would create a new regime to govern the seabed beyond national jurisdiction. In fact, the seabed issue was the moving force behind the fo~ation of the Ad Hoc, then Permanent, Committee on the Peaceful Uses of the Seabed, which was eventually given broadened jurisdiction to prepare the negotiating agenda for UNCLOS III. It was believed initiaIIy that the seabed might contain vast mineral resources. After Arvid Pardo’s now famous appeal that this wealth should be reserved for the world community as the ‘common heritage of making, the General Assembly passed two Resolutions, the Moratorium Resolution calling on states to refrain from exploitation of resources in the Area,*ig and a Declaration of Principles, which declared the Area and its resources to be the common heritage of mankind, not subject to appropriation by any state, to be governed by an international regime to be agreed on.lzo The ICNT defines the Area as ‘the seabed and the ocean floor and subsoil thereof beyond the limits of national jurisdiction’.‘*i The ICNT provides for a new international organization called the Authority which is responsible for reguIating mineral resource exploitation in the Area. The provisions relating to its jurisdiction do not, in emphatic terms, grant or deny it jurisdiction for the purposes of regulating or controlling scientific research. Article 151 provides that activities in the Area shall be carried out by the Authority, and it requires those activities to be conducted on the Authority’s behalf by the Enterprise,i2” and/or by states or their nationals in association with the Authority under contractual arrangements. Therefore, if marine scientific research is considered an ‘activity in the Area’, it is subject to the complete regulatory control of the Authority.

113

Oceanic research

‘Activities in the Area’ are defined in Article 133 as ‘all activities of exploration for, and exploitation of, the resources of the Area’. No reference is made to scientific research. Article 143 is the only Article in Part XI that deals exclusively with scientific research. By its terms research shall be carried on in accordance with Part XIII, Article 257 of which confirms the existence of a ‘right’ for states ‘to conduct marine scientific research in the Area in conformity with the provisions of Part XI’. The references are circular and result in ambiguity, but a ‘right’ is explicitly recognized and is inconsistent with the notion that the Authority has the exclusive prerogative to engage in scientific research through the enterprise or contractual arrangements. Article 143 places a responsibility upon states to promote international cooperation in marine scientific research in the Area by: (a) Participation in international programs and encouraging cooperation . . . by personnel of different countries and of the Authority; . . . (c) Effective dissemination of the results of research and analysis when available . . . 123

These provisions seem to contemplate a right independent of the Authority for states to engage in research. There would be little reason for placing an obligation on states to encourage cooperation and dissemination of results if research could only be carried out under the Authority’s direction. There is, however, one difficulty with this interpretation - it ignores the fact that Section 3 of Part XI is entitled ‘Conduct of Activities in the Area’ and Article 143, ‘Marine Scientific Research’, is the first Article in the section. During the Seventh Session of UNCLOS in Geneva, May 1978, the Chairman of Negotiating Group I of Committee III, revised Article 143 to reflect a compromise formula which strengthens the position that states’ parties have an independent right.lz4 The revision removed paragraph 7, which directs the Authority to engage in scientific research, from Article 15, and placed it in Article 143 as paragraph 2.‘25 This brought together provisions in Part XI relating to scientific research. The language was changed so that the Authority is no longer to ‘harmonize and coordinate such research’, but instead is directed to ‘coordinate and disseminate the results of such research when available’. In addition, the old paragraph 2 was renumbered paragraph 3 and changed to read: States’ Parties shall carry out marine scientific research and promote international cooperation in marine scientific research in the Area exclusively for peaceful purposes . . . lz6

The deletion of the language directing the Authority to coordinate research and substitution of an obligation to coordinate and disseminate results leads to the conclusion that there is no regulatory authority over states engaged in research activities. Coupled with the recognition of a right of states to engage in research in paragraph 3, this leads to the conclusion that states do in fact have an independent right to carry on research activities in the Area. 123ICNT, Article 143, para 2. 1~ ‘Explanatory memorandum by the document, concerning Chairman NGI/lO/Rev 1, Official Records, op tit, Ref 100, p 19. “’ ibid, p 2 1I 128 ibid.

114

IV. Survey of national legislation At present there are about 135 independent coastal states. This study reviews the national maritime legislation of 58 of these nations, all of

MARINE

POLICY April 1980

Oceanic research

which have claimed jurisdictional zones beyond 12 miles.127 The various zones include EEZs, continental shelves, fishery zones, territorial seas and in two cases extended defence zones.iz8 By far the most common is the EEZ.

Coastal state jurisdictional claims

12’ Albania, Angola, Argentina, Bahamas, Bangladesh, Benin, Bermuda, Brazil, Burma, Cameroon, Canada, Cape Verde, Comoros, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, Federal Republic of Germany, Fiji, France, Guinea, Guatemala, Guyana, Guinea-Bissau, Haiti, Iceland, India, Ireland, Japan, Democratic Democratic Kampuchea, Peoples Republic of Korea, Liberia, Malagasy Republic, Maldives Republic, Mauritius, Mexico, Morocco, Malta, Mozambique, New Zealand, Nicaragua, Pakistan, Portugal, Norway, Oman, Senegal, Sevchelles, Sierra Leone, Somali Republic. Spain, Sri Lanka, Tanzania, Tooo, UK, Uruouav, USSR, Vietnam, and Democratic Yemen. Similar maritime legislation of other coastal states was not available to the author. It should also be noted, in the case of some states the legislation obtained may not have been additional zones or complete and authority may be claimed. For citations to the legislation see Appendix. lz8 Angola and North Korea. ‘** See Tables 1 and 2. lJo See Table 1. 13’ICNT, Article 76. I32 Nevertheless, other states claiming EEZs may also be expected to regulate fisheries therein. Angolan Foreign 133 Statement by Minister Paulo Jorge delivered 28 February 1977 at a press conference in Luanda. 13’ Decree of the Central People’s Committee on the Establishment of a Military Sea Boundary (1 August 1977). Mauritius, Pakistan, ‘X Burma. India. Sri Democratic Seychelles, Lanka, Yemen.

MARINE

POLICY April 1980

26 states studied claim a 200 mile EEZ.lz9 With the exception of Brazil, Costa Rica, and the Dominican Republic these claims have all been made since 1976 and coincide with the growing consensus at UNCLOS III approving the concept of an EEZ. The available legislation reveals that 16 states expressly claim jurisdiction over the continental shelf. 130In defining the limits of the shelf, most of these states have adopted the language of the ICNT which allows a state to claim to the outer edge of the continental margin or to 200 miles, where the margin does not extend out to that Brazil and Uruguay use the definition distance. i3’ Argentina, contained in the 1958 Convention on the Continental Shelf, which defines the extent of the shelf in terms of the exploitability of its natural resources. Other states have variously defined it as the continental or insular shelf (Costa Rica), 200 miles or the edge of the continental terrace (Dominican Republic), the outer edge of the continental margin (Bangladesh) and 100 miles beyond the territorial sea (Malagasy Republic). 19 states’ legislation makes express reference to an exclusive fishery zone.132 Of these claims, 17 are to zones out to 200 miles. Malta and Morocco have been conservative, claiming 20 and 70 miles respectively. Claims to territorial seas beyond 12 miles were made by 16 states studied. Eight states claimed 200 mile territorial seas, while others claimed 15, 20, 30,50 and 150 miles. In two instances claims were made to national defence zones. Angola claims ‘the powers vested in it by international law . . . to guarantee its legitimate defense in emergency cases on the high seas close to its territorial waters [words indistinct] 200 miles from the shoreline’.133 Similarly, North Korea has claimed a ‘military sea boundary’ up to 50 miles in the Sea of Japan and to the boundary of the economic zone in the Yellow Sea, from which most ships and aircraft would be banned without permission.134 It can be anticipated that in many instances states will claim authority to regulate the conduct of scientific research within these various zones. While in some cases explicit claims to authority have been made, in other cases claims to authority may be implied by the nature of the zone.

Authority for research regulation Table 1 contains the data on states that have made explicit claims to regulate scientific research within their maritime zones. 22 states are listed, 19 of which claim the right within a 200 mile EEZ. Seven of these states use language similar to Article 247 of the ICNT, and claim the exclusive right, or exclusive rights and jurisdiction, to authorize, regulate and control scientific research.135 Ten states in Table 1 have made explicit claims to the authority on their continental

115

Oceanic research Table 1. States that explicitly claim authority to regulate scientific research beyond 12

nautical milee.a

s Only those states for which the legislation was available are included. Table does not purport to be exhaustive. b 200 represents claim of authority out to 200 nautical miles from baselines. c ICNT: state definition.

has adopted

d Approval for scientific involves taking fish.

the

ICNT

I36 India requires approval for scientific research in its fishery zone that involves taking fish.

‘I16

Country

Date

Argentina

1973

Bahamas Bangladesh

1977 1974

Brazil Burma CUba Fiji

1968 1977 1977 1978

200 200 200 200 May issue regulations

Guatemala Guyana

1976

1977

200 200

lndia Japan Maldives Republic Mauritius Mexico New Zealand

1976 1977 1976 1977 1976 1977

Norway

1976

Pakistan Portugal

1976 1977

Seychelles Sri Lanka Vietnam

1977

PDR Yemen

1977

research that

e Vietnam also claims a continental shelf (200 miles or the edge of the natural extension of the continent) but no mention is made of authority over scientific research.

Exclusive economic zone

1976 1977

Continental shelf

Fishery zone

200b

1958 Convention definition Government may declare

Outer limit of the continental margin 1958 Convention ICNTc

200 -

200 200 Permit necessary for fishing boat -

ICNT

200 200 200 200 200 May issue regulations 200 May issue regulations 200 200 May issue regulations 200 200 200 special economic rights 200

Territorial sea

200 Disclaims authority over research d 200

ICNT

-

ICNT

ICNT ICNT e

ICNT

-

shelf - six in their fishery zone,136and one, Argentina, in its territorial sea. Data on those states that have not made reference to scientific research are contained in Table 2. Although no express claim has been made by these states, the authority is already recognized on the continental shelf by the 1958 Convention, and it is universally recognized as incidental to coastal state sovereignty in the territorial sea. This is not to say this recognition extends to the limits of the territorial sea claimed by these states. In fact, it is highly unlikely that claims beyond 12 miles will be recognized. In other areas, it is likely that the authority will be implied. In the EEZ and fishery zones, states may feel that it is their prerogative to control research related to resource development, because the language of the claims is often in terms of sovereignty or jurisdiction for purposes of exploitation, management or conservation of natural resources. As noted above, North Korea and Angola claim extended military defence zones. It is

MARINE

POLICY April 1980

Oceanic research Table 2. States that claim jurisdiction beyond 12 nautical miles with no reference to scientific research.a

a Only those states for which the legislation was available are included. Table does not purport to be exhaustive. b Numbers represent the width of zone in nautical miles. C Without prior consent ‘foreigners, foreign ships and foreign planes are prohibited from conducting prospection and other acts obstructive to the economic activities of DPRD and doing any acts harmful to the lives of people and resources’. A liberal interpretation of include this claim would scientific research.

Country

Date

Albania Angola

1976 1975

Benin Bermuda Cameroon Canada Cape Verde Comoro5 Costa Rica

1976 1977 1974 1976 1975 1976 1948

Denmark Dominican Republic

1976 1967

Ecusdor FR Germany France Guinea Guinea-Bissau Haiti Iceland Ireland Kampuchea, Dem N Korea

1970 1971 1977 1965 1975 1977 1975 1976 1978 1977

Liberia Malagasy Republic

1976 1973

Malta Morocco Mozambique Nicaragua Oman Senegal Sierra Leone Somali Republic Tanzania Togo UK Uruguay

USSR

Exclusive economic zone

Fishery zone

Territorial sea 15 20

200b

200

200 -

Other 200 defence zone -

66 200 200 200

200 regulate investigation and exploration

-

109

Continental or insular shelf 200 or edge of continental terrace

-

ICNT

200 -

260 200 296 -

266 200 150 -

-

66 defence zone 200 50

100 beyond Territorial sea

-

1971 1975

26 70 -

1976 1965 1977 1976 1971 1972 1973 1977 1976 1969

1976

Continental shelf

-

200 200 ICNT -

-

-

-

1958 Convention definition -

200 -

200

-

150 200 200 50 30 200

-

likely that research will be restricted, as a potential threat to security, in these areas as well. Conduct of research

Nine states studied have, in their legislation or by regulation, adopted terms and conditions governing the conduct of scientific research in the zones over which they claim authority. They include Argentina, Brazil, Colombia, Ecuador, India, Mexico, Portugal, Senegal and Trinidad and Tobago. Table 3 is a compilation of the requirements.

MARINE

POLICY April 1980

117

Ocearzic research Table 3. Terms and conditions

set by legislation or regulation

governing the conduct

of scientific

research beyond

12 nautical

miles.a Trinidad

ICfUT

Article

249

6 months Article

263

no reply within 4;

ColombiaC

Ecuadord

India

1977

1975

1977

42 days

60 days

Argentina

Brazilb

1973

1976 180 days

-

Description

180

days:

if no reply

prior

within

departure

60

Mexico

Sen~ylal~

1973

Portugal 1973

90 days

96 days

-

Full

Nameand

-

_

description

describe

-

-

-

-

and Tobap

1972 -

to

days project

implied

must

consent

considered

be

rejected Information

Article

249

Description

Detailed description

required Description

of

of plans

Description

and

programme

objectives

the project

and scientific objectives

Itinerary

Precise

Itinerary

Work

geograph-

plus

indicated

ical areas

geograph-

charts

stations on

Detailed

Map

list of

stations:

of

stations

routes

ical

and the

and from

coordinates

type

stations;

of

observations

to

and horizontal

made

and vertical distribution of casts and trawls of

Name

of

Sponsoring

Name

institution

sponsoring

institution

institution

institution

or person

and previous

and

responsible

activities

its

Nameof

-

-

-

director Financing

No

Name

institution

requirement

financing

of

Nameof

-

-

financing

institution

institution

or person

and a list of its previous grants

Person

in

Name

of

person

charge

in

Name

of

person

in

charge

and

Nameof

-

person

in

charge

and

statement

curriculum

of

vitae

-

-

qualifications Staff

and

crew

ND

Name

require-

scientific

ment

of

Names

of

-

Namesof

-

Names

of all

those

scientific

scientists

and

involved

pew

and

technical

and

curricula

staff,

curricula

vitae,

vitae

least chief

and

statement

_

-

at

of qualifications Methods

Method

and

and

and

techniques

means

techniques

Techniques

Methods

-

-

Techniques

-

-

and names of all species to be studied

Equipment

Description

Equipment

Instruments

of

to be used

scientific

and

equipment

accuracy

Description

Name,

Description

Description;

of vaw?l

tonnage,

and source

photo

and

typeand

of

type

class of

propulsion,

navigation

vessel

communi-

used

of

-

Name

-

-

and characteristics

cations equipment and radio frequency used

118

MARINE

POLICY April 1980

Oceanic research Table 3 (continued).

Duration

ICNT

Argentina

Expected data

and dates

duration

of

Brazilb

ColombiaC

Ecuadord

India

Mexico

Portugal

Senegale

1973

1976

1977

1975

1977

1973

1973

1972

Timetable

Proposed

-

first

between

appearance

which

and final

project

departure

will

or deploy-

occur

ment

TrinidadTobago

and

removal

of

equipment Port

calls

NO

Time

and

Timeand

require-

place

of

place

ment

port

calls

-

-

-

of;

last foreign port

before

and first after Particioation

Extent to which it is

May require Argentine

project

Agreement

-

to reserve

Must

Agreement to receive

contain

invitation

-

Must

for

-

include

considered

observers

space for

national

local

offer

that

or experts

persons

counterpart:

participation

accept

coastal

to attend,

assigned

must

in final

observer

State

or take

indicate

evaluation

should

Part

to

prior

participate

cooperation

Obligations Article

250

tnformation

Preliminary

Provide

Agreement

reports

accass to

to turn

soon as

all inform-

all inform-

research

practicable

ation

derived

ation

was done

from

the

as

-

over

-

Programme of what

research Results

AClXSS

Final results

Data

and

Access to all final

Submit

complete

results

all reports

Deliver

must

be

and

Requires

of

pledge make

all

conclusions

provided

results

to interim

conclusions

results available

completion

and final

within

of research

results

months

Provide

Provide

Agreement

access to

COPY of

to supply

all data

samples

copies

and furnish

produced

data

-

Data

6

within

6 months

of

to

after

Provide

Data

access to all original.

properW of Trinidad

raw and

and Tobago

processed

to be

data

copied Samples

-

copies

Provide

Provide

access to

copy

samples

data or

and divide

if no

-

-

-

of

Provide

Specimens

accass to

fauna

all samples

must

samplas produced

of

-

Specimens

take”

property

of

be

Trinidad

and

submitted

Tobago

detriment to scientific value Publication

No

Copies

publication

publication

publications

of data

unless conditions

or divulging

must

results

to third

submitted

Ensure‘

-

imposed coastal

by

of

-

-

,

be

or by

government

paw

state

Publication

consent

only

without

require

consent

otherwise Accommodations

Reserves

Ensure

Must

Agreement

right

provide

to reserve

to receive

right

participate

food

space

national

require

or be

accomm.

counterpart

participation

to

and

presented

odations

when

for

practicable

and experts

Article

_

-

Commitment

-

-

Offer

to

to

-

accept observers

observers

assigned Other

_

h

-

-

25012)Q

MARINE

POLICY April 1980

119

Oceanic research Notes to Table 3: a Data obtain from legislation and ‘Notices to research vessel operators’, Department of State, Bureau of Oceans and International Environmental and Scientific Affairs. India and Trinidad and Tobago from M. Katsouros, Two Hundred Nautical Mile National Maritime Claims, Proceedings of a Workshop on Procedures for Marine Scientific Activities in a Changing Environment, National Academy of Sciences, 9-l 1 January 1978. Included in this Table are only the terms and conditions explicitly required by the legislation or regulation. Others are implicit. For example, Colombia’s notice obviously requirement of contemplates a description of the project. b Brazil’s regulations only apply expressly to research in internal waters, territorial sea and continental shelf. Yet Brazilian legislation claims authority to regulate scientific research in its 200 mile EEZ. c Colombia has detailed regulations governing research within 12 miles but as yet these have not been applied to ‘Oceanographical Research’ (sic) which is research in the EEZ beyond 12 nautical miles. d The obligations concerning particiresults and data pation, information, imposed by Ecuador are contained in an agreement that the research director is required to sign. However, the Ecuadorian Navy claims they will not be enforced and are only for the purpose of showing government officials that they are requiring compliance with regulations. e Senegal by custom requires a request to include an offer to accept observers and a pledge by operator to make results available. f Article 250(l)(e) in conjunction with Article 250(2) would allow coastal state regulation of publication or dissemination of results of a project of direct significance for the exploration for and exploitation of natural resources. g Article 250(2) would allow state to impose additional conditions if the project could prohibited pursuant to Article was nevertheless allowed.

the coastal terms and have been 247(4) but

h India will not permit the following classes of research: oceanographic physical ‘ii) observations of a grid closer than 30 miles; series time stationary (ii) observations for all physical parameters oceanographic except currents; observations in ambient and (iii) ship-generated noise levels; reverberations of observations (iv) particularly in shallow waters: use of sub-mercibles [sic]: (v) and acoustic observations on (vi) signal range limitations’.

120

The rows are made up of general categories and the columns list the corresponding specific requirements contained in the ICNT and the various states’ legislation. In most cases the terms and conditions set by an individual state are within the scope of what the ICNT would allow. However, in some instances they represent a significant departure from the ICNT. All but three of the nine states have notice requirements. The ICNT would require that six months’ notice be given prior to the time that the project is to commence. 13’ If no reply were received within four months of the receipt of the notice, the research state would be free to proceed at the expiration of the six months.13s With the exception of Brazil, none of the states are more demanding than the ICNT. Brazil requires that 180 days’ notice be given prior to the research team’s departure from their own country, which in most cases would exceed 180 days before the expected starting date of the project,139 and in projects that involve research off other countries before arrival in Brazilian waters, this could be significant. None of the states have incorporated implied consent provisions. Argentina has, on the contrary, provided that, unless a reply is received within 60 days of its receipt of the request, it must be presumed to be rejected.140 Prior research information Article 249 of the ICNT requires the research state to provide a description of the project. Although only five states specifically require a description, it is obvious that any state that requires consent will demand at least a general description. Geographical. Article 249(c) of the ICNT mandates that information on ‘the precise geographical areas in which the activities are to be conducted’ should be furnished. Argentina, Brazil, Ecuador and Mexico all require similar information. Mexico is by far the most demanding in this regard. It requires a chart or map of stations, routes to and from work stations, geographic location of proposed research and horizontal and vertical distribution of casts and trawls. Brazil also has detailed requirements, including the indication on charts of work sites (positions of oceanographic stations, locales, or routes along which the exploration or research is scheduled to be carried out).14r Names. The name of the sponsoring institution and its director must also be furnished under the terms of the ICNT.142 Although only Argentina and Brazil expressly demand the name of the institution or the requirement may be assumed to be person responsible, universal.143 Brazil, in addition, requires a list of its previous activities.144 Brazil and Argentina also insist on the name of the financing institution,145 and Brazil demands a list of its previous grants.146 The concern over prior activities of the sponsoring institution and the name and previous grants of the financing institution would seem to be directed at ensuring that the project is what it purports to be, and is not used as a ruse to conceal research for resource development or military purposes. The name of the person in charge is required to be furnished by Article 249(e) of the ICNT. Both Argentina and Mexico have similar requirements, but include a statement of qualifications and curriculum vitue.14’ Along with Brazil and Ecuador they also require the names

MARINE

POLICY

April

1980

Oceanic research

of the scientific party,148 and, except for Ecuador, qualifications or curricula vitae.‘49

13’ ICNT, Article 249. 13’ ICNT, Article 253. 13s Brazilian Decree 63.164 of 26 August 1968, Article 6(l) (hereinafter cited as Brazilian Decree), contained in, Bureau of Oceans and International Environmental and Scientific Affairs, Department of to Research Vessel Notices State, no 28, 28 July 1976 Operators, (hereinafter cited as Notices). 140 Arqentine Decree no 4 951 of 23 Mav 1973-Regulating Scientific and Technical Research Activities Conducted by International Foreigners and Organizations, Article 2 (hereinafter cited as Aroentine Decree). j4’ Brazilian Decree, Article 9(W). I42 ICNT, Article 249(e). la3 Brazilian Decree, Article 8(l); Argentine Decree, Article 4(a). l” Brazilian Decree, Article 8(l). I46 Brazilian Decree, Article 8(ll); Argentine Decree, Article 4(b). I40 Brazilian Decree, Article 8(ll). Article 14’ Argentine Decree, 4(c); Mexican Guidelines contained in Notices no 5, 5 October 1972) (hereinafter cited as Mexican Guidelines). Article 148 Brazilian Decree, 8(lll); Ecuadorian Regulations, contained in Notices no 13, 20 November 1973 (hereinafter cited as Educadorian Regulations). lag Ecuadorian Regulations. ‘W Argentine Decree, Article 4(e); Brazilian Decree, Article 8WI); Mexican Guidelines. 15’ Mexican Guidelines. 15* Argentine Decree, Article 4(e). Is3 Mexican Guidelines. ‘W Argentine Decree, Article 4(h); Brazilian Decree, Article 8( 12); Ecuadorian Regulations. ls5 Argentine Decree, Article 4(h). ‘Se Brazilian Decree, Article 8(X11). lb7 Argentine Decree, Article 4(g). ‘Se Brazilian Decree, Article 8(1X). Is9 Argentine Article 4(f); Decree, Brazilian Decree, Article 8(X). lEo Brazilian Decree, Article 8(1 1).

MARINE

POLICY

April 1980

a statement

of their

Description of methods. Article 249(b) of the ICNT would mandate that research states furnish a description of ‘the method and means to be used, including name, tonnage, type and class of vessels and a description of scientific equipment’. Argentina, Brazil and Mexico insist on a description of the techniques150 to be used and Mexico would in addition require specific information on the species to be studied.‘“’ Argentina expressly requires a description of the equipment to be used,lS2 while Mexico desires information on the instruments to be used and their accuracy.153 Argentina, Brazil and Ecuador all demand a description of the vessel to be used.ls4 Argentina, in addition, insists on information on the propulsion, communications equipment and radio frequencies to be used,ls5 and Brazil requires a photograph of the vessel and a description of the type of navigation used. lj6 The concern of Argentina over the communications system may be related to the prevention of unauthorized surveillance of the type for which the Pueblo is renowned, while the insistence on information about propulsion would seem to be directed at regulating the use of nuclear-powered vessels for environmental reasons. Duration. The ICNT would also obligate research states to inform the coastal state of the duration of the proposed project. Article 249(d) would require the ‘expected date of first appearance and final departure of the research vessels, or deployment of equipment and its removal, as appropriate’. Only Argentina and Brazil demand such information, Argentina insisting on a timetable and dates between which the project will occur;157 and Brazil simply on the proposed duration.15* Port calls. This is another area where Argentina and Brazil alone have explicit requirements, 159 but Brazil, in addition, would require the time and place of the last foreign port visited before, and the first visited after, the project is completed.160 Although the ICNT does not refer to the issue of port calls and only two states include an express requirement in their legislation or regulations, all states have the authority, and it is likely that they will insist on such information, because ports are in internal waters and subject to the full sovereignty of the coastal state. Summary. In terms of information demanded, Argentina, Brazil and Mexico have the most detailed requirements. Only in three instances do these represent a significant divergence from those outlined in the ICNT: 0 0 0

Argentina’s notice requirement which provides for an implied rejection if no reply is received within 60 days; Brazil’s requirement that notice be given 180 days prior to the researchers’ departure from their own country; the insistence of Brazil and Argentina on information concerning the financing institution.

For the most part, the information requirements the ICNT and present relatively few problems.

are consistent Unfortunately,

with this

121

Oceanic research

may not be said of the obligations imposed on research concerning the furnishing of results, data and samples, and the publication of results.

Research results The provision of either information, results or data generated by the research project is a near universal requirement. Of the states listed in Table 3, only Portugal and Colombia do not make a demand in this area.16’

Access to data. Article 250, paragraph

l(b) of the ICNT provides that the research state, on request, shall furnish the coastal state with preliminary reports as soon as practicable. Argentina and Brazil desire access to all information produced,16* while Ecuador insists on a programme of what research has been done.163 Article 250, paragraph l(b) would also require that final results and conclusions be furnished after the completion of the research. Argentina, Ecuador, India, Mexico and Senegal call for final results or reports, or access thereto.164 While the other states do not state when these results must be furnished, Ecuador demands that they be furnished within six months of the termination of operations in Ecuadorian waters.16s By the terms of Article 250, paragraph l(c), the research state would be required to provide access, on request, to all data. In addition, it would have to provide data to be copied. Argentina, Brazil, Ecuador and India all have similar requirements.‘@j As with results, Ecuador requires that data be furnished within six months.16’ Trinidad and Tobago, on the other hand, has taken the extreme position that all data is the property of Trinidad and Tobago.168

Access to samples. According

16’ Notices no 14.20 November 1978. lszAct No 20 489 of May 1973 Regulating Scientific and Technical Activities Research Conducted by International Foreigners and Organizations, Article 3 (hereinafter cited as Argentine Act); and Brazilian Decree, Article 8(XIV). I65 Ecuadorian Regulations. ‘-Argentine Act, Article 3; Ecuadorian Regulations, in Regulations: Indian Ref 66, p32 Katsouros, op tit, (hereinafter cited as Indian Regulations): Senegalese Custom, Notice no 9, 24 November 1972. I65 Ecuadorian Regulations. ls6Argentine Act, Article 3: Brazilian Ecuadorian Article Decree, 8t15); Regulations. W’ Ecuadorian Regulations. lG8Trinidad and Tobago Regulations, in p32 Katsouros, op cit. Ref 66, (hereinafter cited as Trinidad and Tobago Regulations). Is9 Argentine Act, Article 3. I70 Indian Regulations. 17’ Mexican Guidelines. 172Trinidad and Tobago Regulations. 173 Indian Regulations; Trinidad and Tobago Regulations.

122

to Article 250, paragraph l(c), of the ICNT coastal states must be given access to samples which must be divided with the coastal state, unless it would be detrimental to their scientific value. The language used by Argentina is somewhat ambiguous,‘69 but it appears to require copies of samples, whatever that may mean. India requires access to all samples,170 while Mexico demands specimens of fauna taken.“’ Trinidad and Tobago, again, takes an extreme position. It claims that all specimens are the property of Trinidad and Tobago. “* The ICNT contains a sensible limitation on the division of samples by requiring a division only when it would not be detrimental to their scientific value. None of the states above has a similar limitation and Trinidad and Tobago seems to reject any such limitation.

Publication of results. This would be required by Article 250, paragraph l(e), but as modified at the resumed Eighth Session the obligation would not prejudice conditions established by the coastal state requiring prior consent. Two states have claimed the authority to control publication. India and Trinidad and Tobago both take the position that publication may only occur with the consent of the coastal state.173 The claim is not limited as the ICNT provisions are, and would presumably apply to all research, not only research related to the exploration for and exploitation of natural resources. Participation. The opportunity the research

project

is required

for participation or representation in by five states - Argentina, Brazil,

MARINE

POLICY April

1980

Oceanic research

Ecuador, Mexico and Senegal. ‘74 The ICNT in Article 250, paragraph l(a), provides that the research state shall ensure the right of the coastal state, if it so desires, to participate or be represented on board, when practicable. The obligation contained in the individual states’ regulations are not so qualified and must be assumed to be absolute.

Restrictive legislation Most states have limited their regulations to information which must accompany a request, and obligations which must be met during the course of a project. India, however, has gone further and prohibited certain classes of research: 0 0 0 0 0 0

physical oceanographic observations of a grid closer than 30 miles; stationary time-series observations for all physical oceanographic parameters except currents; observations in ambient and ship-generated noise levels; reverberations of observations particularly in shallow waters; use of submersibles; observations on acoustic signal range limitations.‘75

Although it may be true that most of these types of research may be of interest for military purposes, and some for resource development purposes, such broad exclusions represent a clear divergence from the ICNT which contemplates a project-by-project determination. In the area of obligations the divergence of state regulations from the ICNT is both more common and of greater significance than is the case with the information requirements. One state has claimed ownership of data and specimens. Such a situation could result in data not being evaluated and the consequent inability to gain knowledge from the project. Two states have claimed the right to control publication of results from any project, regardless of its nature. This could result in the frustration of the aims of pure research. Finally, one state has stated its intention not to permit broad categories of research under any circumstances. It is difficult to draw firm conclusions from this limited sample of state legislation and regulations. However, it is obvious that some states are becoming increasingly restrictive in their regulation of scientific research, both in terms of the geographical scope of their jurisdiction and the terms and conditions governing the conduct of research. There is nothing to indicate that this tendency will not continue; on the contrary, the positions taken by the developing coastal states at UNCLOS III suggest that it will.

V. Conclusion and recommendations

““Argentine Decree, Article 4(k), 6; Brazilian Decree, Article 8(13); Ecuadorian Regulations: Mexican Guidelines; Senegalese Custom, Notice no 9,24 November 1972. ‘Tndian Regulations.

MARINE

POLICY

April

1980

With the emergence of many new nation states possessing interests that vary significantly from those of the major maritime powers, and the increased interest in marine resources fuelled by advances in marine technology, it was perhaps inevitable that Balkanization of the oceans would follow. Pardo’s vision of the ocean as an arena for international cooperation, of an unprecedented nature and scale, has begun to fade. In the light of diminishing expectations about the wealth the international seabed has to offer and the extension of

123

Oceanic research

I’@

See National Academy of Sciences, Marine Scientific Research Assistance to Foreign States: Proceedings of a Conference, 25-27 March 1974. “’ Statements of Giulio Pontecorvo and Donald McKernan. ibid, pp 35-36, and 52-55.

coastal state boundaries to include all parts of the seabed where there is even a remote possibility of the presence of hydrocarbon resources, the concept of marine resources as the common heritage of mankind rings somewhat hollow. Whether or not a treaty results from the efforts of UNCLOS III, coastal state jurisdiction over large expanses of the seabed and superjacent waters is rapidly becoming an international legal-political reality. Freedom of marine scientific research will unfortunately be a casualty of the developing regime. Coastal states perceive it as representing a ~tential threat to their security, to the development of resources off their coast for the national benefit, and a factor contributing to the widening gap between developed and developing nations. While the accuracy of these perceptions may be debated, the strength with which they are held is not open to question. The current consensus at UNCLOS III will allow coastal states considerable discretion in deciding whether to allow research in the EEZ and what conditions to impose. The coastal states whose regulations were studied show a tendency to be even more restrictive than the ICNT in such critical areas as control of data and samples and the publication of results. The oce~ographic community, with justification, feels that it has played the role of the sacrificial lamb. To a large degree, it has been responsible for the breakthroughs that have made marine resource development a reality on a large scale. Now in the name of protecting these newly available resources its ability to conduct research is being severely circumscribed. In the immediate future efforts should be aimed at consolidating the gains made at the resumed Eighth Session. In addition, efforts should be made to obtain more favourable provisions on dispute settlement and international standards for the exercise of discretion. If efforts to obtain more favourable provisions prove fruitless, efforts should be made to secure agreement on the Articles as they stand, either separately or within the context of a comprehensive treaty. The evidence reveals a tendency towards individual state requirements even more restrictive than the ICNT. If no agreement is achieved, this tendency may be expected to continue at an accelerated pace. Once it becomes clear whether a treaty is forthcoming, bilateral negotiations should be instituted with a coastal developing state or states, friendly to the USA, with a view towards agreement on a procedure for the expeditious handling of research requests which can serve as a model in negotiations with other states. Ideally, the treaty would also contain substantive provisions clarifying the rights and duties of both parties, as well as provisions for impartial dispute settlement. Some attention has been given to the use of technical assistance as a 4~~~pro quo to gain access for research.176 Offers of assistance may be used as a tool during such negotiations. It has been argued that such offers, in the form of training foreign scientific personnel and aid to foreign educational and research institutions, would not be effective. It is stated that developing countries really desire the transfer of resource development technologies which are unavailable for transfer because of their proprietary nature.“’ If this proves to be the case, continued efforts to train foreign personnel and assist foreign institutions should still be considered independently as a means of building local constituencies sympathetic to the needs of oceanographic research.

MARINE

POLICY April 1980

Oceanic

Wesley S. Scholz received the degree of BA in 1972 from Marguette University, Milwaukee, WI, the degree of JD from the University of Wisconsin in 1977, and the degree of LL M in Law and Marine Affairs in 1979 from the University of Washington Law School, Seattle, WA, USA. He was formerly a research associate with the University of Washington Law School, and is now a marine resources attorney with the Center for NaturalAreas, Washington, DC, USA.

research

Efforts should also be made to encourage regional organizations to play a role in evaluating research projects involving activities off the coasts of more than one state, and making recommendations to individual states on whether or not to approve. Because of the lengthy and cumbersome nature of the decision process in such organizations and their political character, it would be desirable to work out a procedure whereby an individual or individuals, mutually agreeable to the member countries and the research state, are chosen to conduct the evaluation and make the recommendation directly to the coastal state. The coastal state would remain free to reject the recommendation, but would be less likely to do so arbitrarily where an impartial evaluation has concluded that the project should be permitted. The International Oceanographic Commission (IOC) would still have a role to play in promoting research projects of global interest and coordinating the flow of information. Its most important role would be to serve as a forum for the discussion of issues related to oceanic research so that communication on an international level will remain institutionalized. With its growth in membership the IOC, like other intergovernmental international organizations, has become politicized in recent years. Its ability to agree on and promote international research projects has been impaired by this, as well as by its failure to demonstrate the social utility of large-scale cooperative investigations. Nevertheless, the need for a continuing exchange of views at this level should not be underestimated. On the individual project level, attempts should be made to include the coastal state in the planning process at an early stage. Research planners should familiarize themselves with the marine resource policy of the coastal state and attempt to identify possible spinoffs from the project or direct assistance that may contribute to realization of goals set by the coastal state.

Appendix

List of national maritime legislation Albania Angola Argentina

Bahamas Bangladesh Benin Bermuda Brazil Burma

MARINE

POLICY April 1980

Decree no 4650, March 1970, on the Boundary of the Peoples Republic of Albania, as amended in 1976. Decree no 159-75. Act no 20 489, 23 May 1973, Regulating Scientific and Technical Research Activities Conducted by Foreigners and International Organizations; Decree no 4 915 of 23 May 1973. Fisheries Resources Act no 13, 1977. Act no XXVI, 1974, Territorial Waters and Maritime Zones Act. Decree no 76-92 of 1976. Fisheries Act, 1972, as amended in 1977. Decree no 63 164, 1976. Law no 3, 9 April 1977, Territorial Sea and Maritime Zones Law.

125

Oceanic research Cameroon Can ada Cape Verde Comoros Costa Rica Cuba Denmark Dominican Republic Ecuador Federal Republic of Germany France

Guinea-Bissau Guatemala

Guyana Haiti

Iceland India Ireland Japan

Kampuchea Rep of Korea Liberia Malagasy Republic Maldives Republic Malta Mauritius Mexico

Morocco Mozambique New Zealand Nicaragua

126

Law no 74/16,5 December 1974. Coastal Fisheries Protection Regulation, PC 1976-3022, 9 December 1976. Decree no 14/75, 1 October 1975, Concerning the Territorial Sea. Ordinance no 76.038/CE, Specifying the Limits of Comoran Territorial Waters of 1976. Decree no 5699/eme, San Jose A-71. Legislative Decree no 1, 24 February 1977; Legislative Decree no 2, 24 February 1977. Act no 597, 17 December 1976; Decree no 129, 18 March 1976. Act no 186, 13 September 1967, on the Territorial Sea, Exclusive Economic Zone and Contiguous Zone, Continental Shelf, as amended by Act no 573, 1 April 1977. Civil Code, Book II, Title III, Article 628,4 June 1970. Proclamation of The Federal Republic of Germany on the Establishment of a Fishery Zone in the North Sea, 21 December 197 1. Law no 76-655, 16 July 1977, Regarding the Economic Zone off the Coasts of the Territory of the Republic. Decree no 224/PRG, 3 June 1964, for the Limitation of the Territorial Waters of the Republic of Guinea, as amended in 1965. Decision no 14/74,31 December 1974. Legislative Decree no 20-76, 9 June 1976, Concerning the Breadth of the Territorial Sea and the Establishment of an Exclusive Economic Zone. Act no 10, 1977, Maritime Boundaries Act. Presidential Declaration, 6 April 1977, Relative to the Extension of the Territorial Waters and the Exclusive Economics. Law no 44, 5 April 1948; Regulations, 15 July 1975, Concerning the Fishery Limits of Iceland. Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 28 May 1976. Maritime Jurisdiction Order, 22 December 1976. Law no 30, 2 May 1977, On the Territorial Sea; Law no 3 1, 2 May 1977, On Provisional Measures Relating to the Fishing Zone. Kampuchea Declaration, 15 February 1978. Decree of The Central Peoples Committee on the Establishment of an Exclusive Economic Zone, 1 July 1977. Presidential Decree, 24 December 1976. Ordinance no 73-060, Establishing the Limits of the Territorial Sea and the Continental Shelf of the Malagasy Republic, 28 September 1973. Law no 30/76, 5 December 1976, Relating to the Exclusive Economic Zone of the Republic of Maldives. Territorial Waters and Contiguous Zone Act, 1971, as amended by no XLVI, 1975. Maritime Zone Act, 31 May 1977. Decree, 26 January 1976, Amending Article 27 of the Constitution of the United Mexican States to provide for an Exclusive Economic Zone Beyond the Territorial Sea. Decree no 2-75-31 of Rejeb 111395,21 July 1975. Decree Law no 3 l/76, 19 August 1976. Territorial Sea and Exclusive Economic Zone Bill, Introduced 26 May 1977. Presidential Decree no l/L, 5 April 1965.

MARINE

POLICY

April

1980

Norway

Oman Pakistan Portugal Senegal Seychelles Sierra Leone Somali Republic Spain

Sri Lanka Tanzania Togo

UK Uruguay USSR Vietnam

PDR Yemen

Act no 91, 17 December 1976, Relating to the Economic Zone of Norway, Implemented by Royal Decree, 17 December 1976. Royal Decree no 44, 15 June 1977. Territorial Waters and Maritime Zones Act, 3 1 December 1976. Act no 33/11,2g May 1977. Law no l&54,9 April 1976. Act no 15, 1977, Marine Zones Act. The Interpretation Act, 1971; The Fisheries Act, 1973. Law no 37, 10 September 1972, on Somali Territorial Sea and Ports. Act no lQfl977, 4 January 1977, Concerning the Territorial Sea; Decree No 205/1969, 25 September 1969, Regulating Underwater Activities. Maritime Zones Law no 22, 1 September 1976. Presidential Proclamation extending Tanzania’s Territorial Waters, 7 September 1973. Ordinance no 24, 16 August 1977, for the Delimitation of the Territorial Sea and the Creation of a Maritime Economic Zone. Fishery Limits Act, 1976, Chapter 86. Decree, 3 December 1969. Decree of the Presidium of the Supreme Soviet, 10 December 1976; Provisional Measures to Conserve Living Resources. Declaration on Vietnam’s Territorial Waters, Adjacent Areas, Areas of Special Economic Rights and the Continental Shelf, 20 May 1977. Act No 45, 1977, Concerning the Territorial Sea, Exclusive Economic Zone, Continental Shelf and Other Marine Areas.