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.     

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.     

Access to Marine Bioresources: Hitching the Conservation Cart to the Bioprospecting Horse

Bioprospecting involves the collection of biological material for screening for commercially exploitable biologically active compounds or attributes, including genetic information. The authors assess the claim that bioprospecting has the potential to act as a sustainable carrot for biodiversity-rich states to conserve marine environments. They analyze the tensions between the international conventions that address bioprospecting in marine areas: the Biodiversity Convention and the Law of the Sea Convention. In particular, they reject any suggestion that there is a legal presumption in favor of coastal states granting access to marine bioprospectors. They argue that the different approaches taken by the marine scientific research provisions of UNCLOS to fundamental research and research with commercial potential is unrealistic because of the difficulties of drawing the distinction in practice. As a result, the danger is that scientific research will get caught in the hard bargaining increasingly associated with bioprospecting. The authors argue that coastal states will derive greater benefit from research collaborations rather than the distant prospect of winning the product royalty lottery.     

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.     

Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean

This article recounts the negotiations and emergence of Article 234 concerning ice-covered areas in the UN Convention on the Law of the Sea. As Arctic shipping increases, more vessels and flag states may be subject to the provisions of Article 234, which permit coastal states to both prescribe and enforce special measures to protect the marine environment in ice-covered areas. The history of the Article 234, disclosed partially through declassified U.S. government documents, provides context for implementation of the provision by Arctic coastal states and flag states.     

The New Paradox in Marine Scientific Research: Regulating the Potential Environmental Impacts of Conducting Ocean Science

Concerns about the negative effects of marine scientific research are in clear juxtaposition to the beneficial role that scientific knowledge plays in enhancing the understanding of the oceans and protecting the marine environment. This presents a regulatory paradox that is examined in this article in light of the legal framework in the 1982 United Nations Convention on the Law of the Sea. The article traces how these general principles in the Convention are elaborated in soft law instruments for the promotion of environmentally sustainable research practices. It also looks at an example of state practice in this area by examining regulatory measures instituted in the Canadian Endeavour Hydrothermal Vent Marine Protected Area.     

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 law of the sea and the U.S. exclusive economic zone: Perspectives on marine transportation and fisheries

Abstract

It has been argued that the issuance of the U.S. Exclusive Economic Zone (EEZ) Proclamation could lead to difficulties in the management of our coastal resources. This paper will examine the consequences of a U.S. EEZ for fisheries and marine transportation. For each sector consideration will be given to the inconsistencies which exist between the United Nations Convention on the Law of the Sea, the U.S. Proclamation, and existing U.S. legislation. The problems and opportunities presented by these inconsistencies are discussed. The authors conclude that, while some modifications of U.S. policy may be required, wide‐ranging changes are neither likely nor needed.     

The U.S.-Led Proliferation Security Initiative and UNCLOS: Legality,Implementation, and an Assessment

This article examines the relationship between the U.S.-led Proliferation Security Initiative (PSI) and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It attempts to answer the questions of whether the PSI is legal or illegal under UNCLOS and whether U.S. accession to UNCLOS would enhance or create difficulties for the implementation of the PSI. The author concludes that U.S. accession to the Convention would not affect adversely the implementation and effectiveness of the PSI. On the contrary, accession to UNCLOS could help increase U.S. credibility and leadership in dealing with the threat to international peace and security posed by weapons of mass destruction proliferation. It also suggests that all the relevant information needs to be gathered and examined carefully in order to answer the question of whether a PSI interdiction action is legal under UNCLOS or not.     

Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention

This contribution examines and points out the inadequacy of the provisions of Part III of the 1982 Law of the Sea (LOS) Convention to combat marine pollution in straits used for international navigation without infringing the right to transit passage of all user states. It stresses that it is the environmental obligation of all user and strait states to protect the marine environment of straits used for international navigation. To this end, this paper proposes that Part III of the 1982 LOS Convention be reconsidered and a "Guarantee of Freedom of Navigation--Environmental Impact Statement" be adopted by user and strait states.     

A note on the role of african states in committee I of UNCLOS III

Abstract

This study assesses the role the African states played in the formulation of Part XI of the U.N. Convention on the Law of the Sea. It demonstrates that the clauses dealing with the seabed issues largely incorporated their interests. It is also argued that it was because of the African states’ efforts (among other members of the G‐77) that the industrialized countries acquiesced in the negotiation of a comprehensive LOS Treaty.     

Ocean Upwelling and International Law

Ocean upwelling pipes are used to upwell nutrient-rich deeper waters in order to fertilize the surface ocean. This article addresses whether international legal rules exist governing the deployment of ocean pipes and which states are entitled to exercise jurisdiction over these objects. Taking into account the need to avoid user conflicts and unauthorized deployment of upwelling pipes in marine areas under the jurisdiction of third states, the article advocates the development of nonbinding guidelines that would implement the general terms of the United Nations Convention on the Law of the Sea.     

A Note on the European Union's Integrated Maritime Policy

This article analyses the characteristics of the Commission on the Limits of the Continental Shelf as an international decision-making institution in the process of establishing the seaward limits of the continental shelf beyond 200 nautical miles from the baselines of the territorial sea under Article 76 of the 1982 UN Convention on the Law of the Sea. The Commission may be compared to scientific bodies established to give advice relating to the implementation of treaty provisions. However, in the exercise of its functions, the Commission also performs legal-administrative tasks, and its recommendations to individual coastal states entail significant legal effects; for instance, as a means of interpretation under the Vienna Convention on the Law of Treaties. The Commission's functions and competencies must be taken into account in classifying and understanding this unique international institution.     

The U.N. convention on the law of the sea and military interests in the indian ocean

Abstract

The U.N. Law of the Sea Convention, ambiguous on military uses of the ocean space, weakens the legal basis for the maritime powers to pursue freely their military objectives in the oceans. Repudiation of the Convention by the United States will accelerate the creeping jurisdiction of the littoral states. The Convention enhances the security of the littoral states of the Indian Ocean, all of whom have only limited blue‐water capabilities and have sought to contain the military intrusions of the superpowers into the Indian Ocean.     

Some problems concerning the delimitation of the maritime boundary between the republic of china (Taiwan) and the Philippines

Abstract

This paper analyzes the issue of how the relevant provisions of the 1982 United Nations Convention on the Law of the Sea can be applied to the delimitation of the maritime boundary in the Bashi Channel between Taiwan and the Philippine island of Luzon and in the South China Sea area. It concludes that the Philippines’ extensive territorial sea claim based on the 1898 U.S.‐Spanish Peace Treaty can hardly find any basis in customary rules of international law and the U.N. Convention and, therefore, should be disregarded in such delimitation. On the other hand, the archipelagic principle provided in the Convention can be applied here. With respect to rules of delimitation, it suggests that the equitable principle of the delimitation of the continental shelf, enunciated in the Anglo‐French Continental Shelf Arbitration (1977) and the Tunisian‐Libyan Continental Shelf Case (1982), can mutatis mutandis be applied to the delimitation of the maritime boundary. As an interim solution, the maritime boundary of certain disputed islands in the South China Sea should be declared neutral zones open to nationals of both countries.     

Then and Now: Reappraising Freedom of the Seas in Modern Law of the Sea

The principle of freedom of the seas remains the governing paradigm of the high seas in modern law of the sea. Although the principle, as embraced by the UN Convention on the Law of the Sea (LOSC), is no longer an absolute norm, it continues to present fundamental challenges for achieving effective conservation on the high seas as it stands in direct contrast to the conservation duty imposed on states by LOSC. The recent UN General Assembly resolution calling for the adoption of a further Implementing Agreement under LOSC to address conservation on the high seas, highlights the need to build a new ethos for management of the high seas, which will require states to loosen their firm grip on the Grotian doctrine. This article seeks to contribute toward shifting attitudes in relation to the principle of freedom through an examination of the nature and scope of the principle in its historic context and in contemporary law of the sea.     

Disputed Areas and the 10-Year Time Frame: A Legal Lacuna?

Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.     

The Practice of Archipelagic States: A Study of Studies

The 1982 UN Convention on the Law of the Sea contains provisions governing the maritime claims of states, including special provisions for archipelagic states. To date, 20 states have utilized these provisions by enacting archipelagic baselines, within which these states claim sovereign waters subject to the navigational rights of other states. This article systematically examines the degree to which the archipelagic claims of these states have complied with the requirements in the Law of the Sea Convention.     

Deep seabed mining: A definition of the problem

Abstract

The prospects for deep seabed mining in this century appear remote. The U.N. Convention on the Law of the Sea was closed for signature on December 10, 1982. As of that date, 155 nation‐states and four entities had signed, but not the United States and some others. Since that time, the United States has endeavored without much success to develop a “Reciprocating States Agreement”; that would legitimate seabed mining with or without the U.N. Convention. On the other hand, the Preparatory Commission has met six times and is making only modest progress without the participation of the United States, the United Kingdom, and the Federal Republic of Germany.     

PSSAs and Transit Passage—Australia's Pilotage System in the Torres Strait Challenges the IMO and UNCLOS

On 22 July 2005, the International Maritime Organization (IMO) approved the extension of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA) to the Torres Strait in Resolution MEPC.133(53). Australia amended its regulations and issued marine orders imposing a compulsory pilotage system in the Torres Strait. Australia's actions triggered protests from maritime states at the IMO and in bilateral diplomatic exchanges. This article examines the legal issues raised by Australia's establishment of a compulsory pilotage system in a strait used for international navigation, including the prospects for Australia being challenged under the compulsory dispute settlement provisions of the UN Convention on the Law of the Sea. It is recommended that the PSSA Guidelines of the IMO be amended to ensure that such legal issues do not arise in the future.