Marine scientific research under emerging ocean law

Abstract

The traditional “fifth freedom”; of the high seas—freedom of scientific research—has been considerably eroded by recent coastal state claims to 200‐mile offshore zones. Insofar as these claims include competence to regulate marine scientific research, they are about to be endorsed in the adoption of a new Law of the Sea Convention by the Third U.N. Conference on the Law of the Sea. The author assesses the significance of the claims and examines the features of the “consent regime”; established through the negotiations at the Conference.     

Science,sovereignty, and the third law of the Sea Conference

Abstract

The international law of marine scientific research is currently in flux. Efforts are under way at the Third Law of the Sea Conference to produce a treaty that, among other things, would make the law of research more uniform and certain. Sortie areas of disagreement certainly still exist in the Conference negotiations. Nonetheless, the negotiations have produced proposed treaty provisions concerning the law of research that have met with substantial approval. At this point, it does not appear likely that the Conference will produce major alterations in the main body of these provisions. These proposed treaty provisions indicate the future direction the law of research will take. Even if a workable treaty does not result from the negotiations, these provisions will undoubtedly inform customary international law. This article examines both the areas of agreement and the areas of disagreement at the Third Law of the Sea Conference in an effort to understand the probable future legal regime under which marine scientific research will be conducted.     

The law of the sea and regional fisheries policy

Abstract

The consequences of the inevitable acceptance of extended jurisdiction and its impact on fisheries policy in the South Pacific are considered within the framework of the principles outlined at the Third Session of the United Nations Law of the Sea Conference. It is pointed out that the fisheries resources of the region considered are dominated by highly migratory species, particularly tunas, and that the management of the fisheries on these species and the conservation of the species themselves will require comprehensive regional cooperation. Considering the common interests of the developing countries of the region and their comparative lack of experience in fisheries management and in surveillance and enforcement capabilities, it is argued that a regional fisheries agency is required. A wide range of possible functions for such a body is discussed and a three‐phase approach to the development of the agency is proposed.     

The United States and the revision of the 1982 convention on the law of the sea

Abstract

It may now be possible to breach the 1982 Law of the Sea Convention impasse. The UN Secretary‐General's informal consultations have opened realistic discussions on the deep seabed regime. Many important changes have occurred since the Convention was signed. Dramatic developments have taken place in the international community. Nations now appreciate the limited potential of deep seabed mining. While United States reliance on customary law provides some benefits, other more important U.S. interests cannot be protected absent entry into force of the Convention with widespread participation. Many alternative procedures are available to forge an accommodation. The approach taken in the Secretary‐General's consultations is to make specific changes in deficient articles. Alternatively, the present regime might be jettisoned in favor of a framework regime. Such a regime would preserve only the essential basic policies of the Convention's seabed regime. It would contain a system for constructing a viable mining system if a deep seabed regime is needed.     

The 1987 law of yugoslavia on the coastal sea and the continental shelf

Abstract

This article analyzes the recent Yugoslav legislation on the regime of internal waters, the territorial sea, and the continental shelf which was initiated by the ratification of the Law of the Sea (LOS) Convention on behalf of Yugoslavia on November 27, 1985. The highlights of the 1987 law are the clauses strengthening the national security interests in the internal waters of Yugoslavia, the repair of foreign ships in domestic shipyards, the introduction of the system of prior notification of foreign warships entering the territorial waters, and the extension on the continental shelf of sovereign rights over archeological and historical objects. It is maintained that the law has failed to incorporate the novelties of the LOS Convention such as the proclamation of the Yugoslav exclusive economic zone (EEZ) in the Adriatic Sea and the reestablishment of its contiguous zone.     

The conflict between petroleum production,navigation and fisheries in international law

Abstract

Growing offshore oil activity and new technology have resulted in increased interference with traditional uses of the sea, such as fishing and navigation. This article discusses where oil production is prohibited, the extent of safety zones and the removal of installations after use. These questions are examined on the basis of the 1958 Continental Shelf Convention, the 1982 Law of the Sea Convention and state practice. When assessing this multiple use conflict, the different legal regimes for the continental shelf, fishing and navigation must be harmonized. “Creeping jurisdiction”; in state practice and the handling of these questions in the International Maritime Organization are also examined.     

The legal regime governing seafloor polymetallic sulfide deposits

Abstract

Beginning in 1977, oceanographers discovered seafloor vents spewing hot water into the surrounding water and sustaining exotic communities of marine life. They determined that the hydrothermal vent systems also produced deposits containing minerals of economic and strategic interest, thus sparking the interest of legislators and diplomats seeking the successful conclusion of the United Nations Conference on the Law of the Sea. This article examines the legal and regulatory regime which may govern development of these deposits off United States coastal waters, then turns to a discussion of how negotiators at the Law of the Sea Conference sought to incorporate the new sulfide discoveries into their efforts at international lawmaking.     

Antarctica and the law of the sea: An introductory overview

Abstract

This article examines the potential for conflict between the Antarctic Treaty regime and the Convention recently produced by the Third United Nations Conference on the Law of the Sea. Should the UNCLOS III Convention enter into force, at least six issue‐areas seem susceptible to future controversy in Antarctic waters, namely (1) seaward territorial limits; (2) resource management and conservation; (3) local environment protection; (4) marine scientific research; (5) deep seabed mining; and (6) archipelagic‐island regimes. Accordingly, each issue‐area is assessed as to its relevance for the Southern Ocean vis‐a‐vis the Antarctic Treaty parties, with a particular view towards signaling possible problems which involve conflict of interest and overlapping jurisdiction.     

Creeping jurisdiction beyond 200 miles in the light of the 1982 law of the sea convention and state practice

Abstract

This article attempts a complex examination of problems pertaining to actual and potential extensions of coastal state rights and jurisdiction beyond the limit of 200 miles in the light of 1982 Law of the Sea Convention and state practice. Extension of the continental shelf regime, in the context of its outer limit beyond 200 miles, the entitlement of rocks to this limit, and the scope of coastal state rights and duties, is analyzed first. It is followed by discussion of the extension of the exclusive economic zone (EEZ) or fishery zone regime, which involves extension of certain coastal state fishery rights on the one hand, and the right of intervention in cases of maritime casualties and the liability regime for oil pollution damage on the other hand. Attention is also paid to presently speculative extensions of both regimes as a consequence of sea level rise. The author concludes that, if a continuing nontreaty situation deprives recourse to compulsory dispute settlement, the worst‐case scenario of spatial extension of the entire EEZ regime to the outer edge of the continental margin could not with certainty be excluded.     

United States policy on international straits

Abstract

United States policy on international straits is dictated by the vital importance to U.S. national security interests of unimpeded commercial and military transit through, over, and under sea lines of communication. Although perceived flaws in the deep seabed mining regime of the 1982 Law of the Sea Convention precluded U.S. signature or ratification of that document, the United States considers that the navigational articles of the convention reflect customary international law. Accordingly, U.S. policy on international straits is premised on recognition of and respect for the balance of interests set forth in the navigational articles of the 1982 Law of the Sea Convention.     

The new law of the sea and the pacific basin

Abstract

The UN Convention on the Law of the Sea is indispensable for the well‐being of the states, especially the new island states, of the Pacific Basin. Since the Treaty will be signed at Caracas in December 1982, it is important to anticipate its impact in the Pacific Region area. The article examines the need for a new ocean law to replace the old law of the Geneva Conventions. It argues that exploitation of manganese nodules in the “Area”; will be legal only under the rules of Part XI of the Convention and that the principles of the Common Heritage of Mankind are now part of customary law. Finally, the seaward expansion of Pacific states authorized in the new treaty both necessitates, and provides an opportunity for, coordinated planning for the management of ocean resources and usages.     

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.     

The law of the sea and management of anadromous fish stocks

Abstract

Unilateral declarations of 200‐mi fishing zones by coastal states are likely to find universal recognition in new articles of international law. These probably will conform to the Single Negotiating Text currently under discussion in continuing sessions of the Third Conference on the Law of the Sea. The articles of this Text are clearly designed to protect and strengthen the fisheries rights of coastal states. Ironically, the new rules may prove counterproductive in respect of the major salmon stocks that migrate beyond 200‐mi limits. Effective protection of state‐of‐origin rights on the high seas beyond these limits will be difficult. Distant water fishing fleets experiencing reduced access to 200‐mi coastal zones will be tempted to increase, their efforts on stocks found in the remaining high seas. Salmon interception by neighboring states will also remain a problem. The article analyzes protective strategies and accommodations that may be pursued by states of origin.     

Latin America's influence and role in the third conference on the law of the sea

Abstract

This study is a general outline of Latin America's claims, positions, and struggle for more than a quarter of a century in matters dealing with the new Law of the Sea. It emphasizes what in some way might be called the original Latin American contribution to the new Law, but it also deals with the support given to the ideas and proposals of other countries and regions. It attempts to summarize and explain the general and dominant trends in the Latin American region.

There are two features of this work: (1) the historical background as a means of explaining unilateral actions and regional declarations through which a breach in the solid structure of the traditional Law of the sea was opened; and (2) the conclusions based on personal experience and a recollection of mental notes rather than comprehensive consultation of documents.

The principle of the common heritage of mankind, proclaimed by the United Nations General Assembly (Resolution 2749 (XXV)) in December of 1970, has a dominant role in this study, particularly as it relates to issues dealing with the international area of the seabed. This principle holds the key to the acceptance or rejection of different proposals on the subject. Notwithstanding appreciation of this principle, recognition of some facts of the contemporary international community tempers strict application of this principle and opens the way to suggest some compromises that might close the gap between developed and developing countries in this crucial matter.     

Anadromous species and the new international law of the sea

Abstract

This article examines the evolution of international law relating to anadromous species, focusing exclusively on salmon and primarily considering the period since World War II. The discussion concerns major international harvesting in the western North Pacific, eastern North Pacific, and the North Atlantic. Unilateral actions are also described. Special attention is given to the relevant articles of the 1982 Convention on the Law of the Sea and to developments since its conclusion. Evidence is assessed for considering that the customary international law of the sea now recognizes the authority of the state of origin of salmon to prohibit high seas harvesting of salmon.     

Implications of the UNCLOS Marine Scientific Research Regime for the Current Negotiations on Access and Benefit Sharing of Marine Genetic Resources in Areas Beyond National Jurisdiction

Abstract

Access to marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ) and the sharing of benefits arising out of the utilization of these resources are among the most contentious at the UN Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction. This article examines the applicability of the marine scientific research (MSR) regime of the UN Convention on the Law of the Sea (UNCLOS) to the access and benefit-sharing issues. It concludes that the MSR regime of UNCLOS provides the legal basis for setting up nonmonetary-benefit sharing obligations, including the dissemination of information, data, and research results concerning MGRs at the UN negotiations on marine biodiversity in the ABNJ.     

Deep seabed mining: Can an acceptable regime ever be found?

Abstract

Fourteen years of effort by the Third United Nations Conference on the Law of the Sea and its predecessors have so far failed to produce a generally acceptable regime for deep seabed mining. The present Draft Convention does contain ingenious solutions to the problems created by the unique characteristics of seabed resources, the lack of existing international law governing their exploitation, the influence of the navigation provisions, and the need to reconcile the financial requirements of miners with the expectations of developing countries. It is a remarkable achievement in view of the negotiating obstacles that had to be overcome, but the regime is cumbersome and expensive. Further improvements in the interest of simplification will have to be made if it is to be workable.     

Transfer of seabed mining technology: A stumbling block to U.S. ratification of the law of the sea convention?

Abstract

The Law of the Sea Convention's provisionson the transfer of seabed technology are designed to translate into specific terms the general notions (adopted in the U. N.’s Declaration of Principles of 1970) that the resources of the seabed are the “common heritage”; of humankind and that the developing nations are to gain special benefits from the exploitation of these resources. Some developed nations—in particular, the United States—have argued that these provisions are unfair, because they deprive the multinational enterprises of the developed world of the competitive advantage they have gained from their substantial investment in research and development and their innovative capabilities.

The transfer of technology is not a new concept. It is a mechanism that has been used systematically by many developing countries to ensure that foreign investments will produce a lasting infrastructure for continued national development. Multinational enterprises have learned to accommodate national needs in this area, and technology‐transfer requirements for land‐based investments have not deterred investments in the developing world.

The technology‐transfer provisions in the Law of the Sea Convention are ambiguous in certain respects, but the Preparatory Conference should provide ample opportunity to clarify these ambiguities and thus to accommodate the needs of both the investors and the developing nations. If this issue is examined from a common‐sense perspective, it should not continue to be a stumbling block that would prevent the United States from ratifying this important Convention.     

The European economic community and the law of the sea

Abstract

The European Economic Community (EEC) has the competence, to the exclusion of its Member States, to conclude international agreements in important fields, such as fisheries, on which the draft convention on the law of the sea contains provisions. Contracting parties to the future Law of the Sea Convention will not be allowed to make reservations to the convention or participate in it on a partial basis. It follows there‐from that provisions must be envisaged which would allow the EEC to become a contracting party to the convention together with its Member States. This article outlines the legal background for participation by the EEC in international agreements and indicates the main provisions of interest to the EEC in the draft convention prepared at UNCLOS III.