The legal regime of marine scientific research: Current issues

Abstract

Part XIII of the 1982 UN Convention on the Law of the Sea (UNCLOS) provides a detailed international legal regime for the conduct of marine scientific research (MSR) at sea. Although this regime formally only entered into force for the parties to UNCLOS in 1994, in many respects its provisions were already regarded as reflecting customary international law and this has been confirmed by subsequent practice. However, any legal regime is subject to change and it is therefore opportune to examine the current situation. Before addressing the current main issues concerning the implementation of the regime, the paper will briefly look at the effects the new regime for MSR in Part XIII of UNCLOS has had on the development of ocean science. It is interesting to note that in the past decade little attention has been paid to this question, as contrasted to the preceding years. Before and during UNCLOS III serious concerns had been voiced by scientists about the potential negative effects for ocean science of a consent regime for MSR in the vast maritime areas that would come under the jurisdiction of coastal States. Some studies were conducted to monitor state practice and the effects thereof, but the results were not conclusive. It would be useful to make an effort to obtain more recent information in order to attempt answering this question. This question cannot be adequately examined without looking at the related issue of the involvement of developing coastal States in the conduct of MSR. The paper will, inter alia, address the role the Intergovernmental Oceanographic Commission's Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS) could play for this purpose. The main current issues concern the basic question of which ocean data collection activities come within the scope of the regime of Part XIII of UNCLOS. UNCLOS does not contain a definition of MSR, and this is part of the reason why at present there are uncertainties and differences of opinion on whether the MSR regime applies to some activities in the ocean, such as routine collection of oceanographic data (sometimes referred to as "operational oceanography"), and "bioprospecting" in seabed areas beyond national jurisdiction. Other current issues concern the implementation of some of the provisions of Part XIII of UNCLOS, such as Article 247 on procedures for consent for MSR conducted by or under the auspices of international organisations, the concerns over environmental effects of certain MSR activities, the provisions on dispute settlement, and the rights of land-locked and geographically disadvantaged States. Several of these issues are being dealt with at present in international fora, in particular the IOC/ABELOS. The paper will examine and comment on the work of the various international fora in the field of MSR.