A General Review of the New Convention on the Law of the Sea: Marine Science and Its Application1

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A General Review of the New Convention on the Law of the Sea: Marine Science and Its Application1

in Ocean Yearbook Online


1. The views expressed herein are solely those of the author and do not necessar- ily reflect those of the Bulgarian government; nor should they be attributed to his position as an elected officer of the United Nations Third Conference on the Law of the Sea. They were prepared for the UNU/IOC/Unesco Workshop on International Cooperation in the Development of Marine Science and the Transfer of Marine Tech- nology, August 1982.

2. Statement of the Secretary-General of the United Nations at the sixth session of UNCLOS III on May 23, 1977. United Nations Third Conference on the Law of the Sea (hereafter UNCLOGS III), Official Records (New York: United Nations, 1977),7:3. 3. Ibid., 10 (1978): 6-9.

4. Report of the International Law Commission covering the work of its 8th sess. April 23-July 4, 1956, in United Nations General Assembly (hereafter UNGA), Official Records, 11 th sess., Suppl. 9 (1956), pp. 2-45. 5. Ibid., p. 24. 6. Ibid., p. 24. 7. Ibid. 8. UNCLOS III, Official Records 4 (1958): 20, 38.

9. Ibid., pp. 55, 117. 10. See, e.g., the joint Unesco-IMCO report of 1962 on fixed oceanographic data sections, which emphasized that "freedom of the high seas includes the freedom of research in the high seas." Unesco, Intergovernmental Oceanographic Commission, Preliminary Report of Unesco and IMCO on the Legal Status of Unmanned and Manned Fixed Oceanographic Stations (Unesco Document NS/IOC/INF/33). 11. Section 3 of part 2 (High Seas) of the draft prepared by the International Law Commission was devoted to the continental shelf. Altogether it contained seven arti- cles (Articles 67 through 73); none of them referred to the conduct of marine scientific research on the continental shelf. UNGA, pp. 11, 40-45. 12. See the resolutions of the International Council of Scientific Unions of 1954 and of the Assembly of that council; the resolution of the International Union of Geodesy and Geophysics and of the International Union of Biological Sciences, in Yearbook of the International Law Commission, 1956 (New York: United Nations, 1956), 2:54-55. 13. UNGA (n. 4 above), p. 43. ' 14. About 20 formal proposals were made on draft articles 68 and others relating

to scientific research. United Nations Conference on the Law of the Sea, Official Records (New York: United Nations, 1956), 6:125—42. Some of these proposals refer explicitly to the importance of marine science and the need to add a special provision stipulating the main purposes and requirements for the conduct of marine scientific research. See, e.g., the proposals of Denmark (A/CONF.13/C.4/L.50), Indonesia (A/CONF.13/ C.4/L.53), Iran (A/CONF.13/C/L.50), and the Federal Republic of Germany (Mem- orandum concerning draft-articles 67 through 73, in document A/CONF.13/CA/ L.58). 15. United Nations Conference on the Law of the Sea, Official Records (New York: United Nations, 1956), 6:125-42. 16. Ibid., p. 143. 17. UNGA, p. 43. 18. O. Freymond, Le Statut de la recherche scientifique marine en draft international (Geneve: Librairie de l'Universit6, 1978); R. Revelle, "Scientific Research on the Sea- Bed: International Co-operation in Scientific Research and Exploration," Symposium on ' the International Regime of tlae Sea-Bed Proceedings, ed. J. Sztucki (Rome: Accademia Nazionale dei Lincei, 1970), pp. 659-80.

19. The new Convention will enter into force in accordance with its Article 308, 12 months after the deposit of the sixtieth instrument of ratification or accession. Until that time, the Geneva Conventions will be the only multilateral treaty in the field of maritime law adopted under the auspices of the United Nations and with a relatively large number of state parties. For those states, the Geneva Conventions, and the regime established by them, will continue to have legally binding force. 20. The General Assembly first established the Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction by resolution 2340 of December 18, 1967. UNGA, Official Records, 22d sess., Suppl. 16 (1967), p. 14. 21. The Convention on the High Seas came into force on September 30, 1969; the Convention on the Continental Shelf, on June 10, 1964; and the Convention on Fishing and Conservation of the Living Resources of the High Seas, on March 20, 1966.

22. See resolution 2574-A (XXIV) of December 15, 1969. UNGA, Official Rec- ords, 24th sess., Suppl. 30 (1969), p. 10. 23. See resolution 2750-C(XXV) of December 17, 1970. UNGA, Official Records, 25th sess., Suppl. 28 (1970), p. 26. 24. Ibid. 25. Ibid. 26. In accordance with resolution 2760-C (XXV), the Sea-Bed Committee ap- proved, on August 18, 1972, a "list of subjects and issues relating to the law of the sea" which did not pretend to be complete, nor did it establish the order of priority for their

consideration. Nevertheless, the report pointed out that it had been prepared "follow- ing a comprehensive approach and attempts to embrace wide range of possibilities." Altogether, the list contained 96 items under 25 headings. UNGA, Official Records, 27th sess., Suppl. 21 (1972), pp. 4-8. 27. The idea that the seabed and ocean floor and the subsoil thereof beyond the limits of national jurisdiction should be considered as the Common Heritage of Mankind was mentioned by the representative of Malta, Arvid Pardo, in his statement at the 22d sess., General Assembly, 1967.

28. See the Report of the Sea-Bed Committee on its work during 1970, contain- ing several proposals on the conduct of marine scientific research: e.g., the draft resolution in document A/AC.138/SC.1/L.2, submitted by 15 developing countries; document A/AC.I38/SC.I/L.4/Rev. 1, which contains a draft resolution submitted by Norway; and document A/AC. 138/25, containing the Draft United Nations Conven- tion on the International Sea-Bed Area, a working paper submitted by the United States.

29. See, e.g., the last report of the Sea-Bed Committee in 1972, in which it was stated that "there was a need to formulate general principles governing oceanic re- search which, while acknowledging the unity of the marine environment, must not ignore the diversity of the regimes existing in different marine areas." UNGA (see n. 26 above), p. 60.

30. The question of consent with respect to the conduct of scientific research in the Territorial Sea did not raise difficulties in the negotiations. It was generally recog- nized that in exercising its sovereign rights the coastal state is entitled to regulate all research activities, and, therefore, such activities could be carried out with its express consent. 31. In the Report of the Sea-Bed Committee in 1972, it was pointed out that "an attempt should be made to distinguish between fundamental oceanographic research and bona fide scientific research and the more practical, applied aspects, particularly as they relate to commercial exploitation and military purposes." UNGA (n. 29 above). 32. Ibid., pp. 60-61. 33. Ibid. 34. Ibid. 35. UNGA, Official Records, 28th sess., Suppl. 21 (1973), 1: 123. See draft article variant A. 36. Ibid., article 63, variant B. 37. Ibid., article 64, variant B.

38. UNCLOS III, Official Records 4 (A/CONF.62/C.3/L.19, rev. 2): 199. 39. UNCLOS III, Official Records 3 (A/CONF.62/C.3/L.19): 266-67. 40. UNCLOS III, Official Records 4 (A/CONF.62/C.3/L.26): 213. 41. Ibid. 42. UNCLOS III, Official Records 4 (A/CONF.62/C.3/L.29): 216. Submitted by Colombia, El Salvador, Mexico, and Nigeria. 43. UNCLOS III, Official Records 5 (A/CONF.62/WP.8/Rev.l, pt. 3): 182. Text presented by the Chairman of the Third Committee. 44. Ibid.

45. "Report of the Chairman of the Third Committee," UNCLOS III, Official Records 6:91. 46. Ibid., p. 142. 47. Ibid.

48. Resolution 2749 (XXV) of December 17, 1970, UNGA Official Records, 25th sess., Suppl. 28 (1970), pp. 24-25; Resolution 2660 (XXV) of December 7, 1970, ibid., pp. 11-13. 49. United Nations Secretariat, Treaty Series 402 (1959): 71. 50. United Nations Secretariat, Treaty Series 480 (1963): 43. 51. Resolution 2222 (XXI) of December 19, 1966, UNGA, Official Records, 2 1 st sess., Suppl. 16 ( 1966), pp. 43. 52. Resolution 2660 (XXV) of February 9, 1971, UNGA, Official Records, 25th sess., Suppl. 28 (1971), pp. 11-13. 53. Resolution 2625 (XXV) of October 24, 1970, ibid., pp. 121-24.

54. Ibid. 55. Ibid. 56. See, e.g., articles 200, 201, and 202 on research programs, scientific criteria for the establishment of rules, standards, and practices for the protection and preser- vation of the marine environment, as well as the carrying out of programs for scientific and technical assistance to developing countries; article 123 on the cooperation in all fields of marine activities among states bordering enclosed and semienclosed seas; article 255 on the duty to facilitate marine scientific research and assist research ves- sels; and other provisions relating to international cooperation.

57. See articles 263 (on liability and responsibility), 264, 265, 297, and the rele- vant provisions of pt. 15 (settlement of disputes); articles 55, 56, 58, and 61-67 (on the regime of the exclusive economic zone); article 74 (on the continental shelf), as well as the pertinent provisions in pt. 13 of the Convention (articles 258-62 relating to scientific research installations and equipment in the marine environment). 58. It may be pointed out that provisions of the Convention dealing with the legal status of various maritime zones, or the regulation of activities carried out therein, also bear upon on the regime of scientific research. This is the case, e.g., with articles 19, 21, 40, 52, and 54, on innocent passage in the territorial sea, through the international straits, or in the archipelagic waters, and other provisions of the new Convention.

59. See Revelle (n. 18 above), p. 650. 60. A general estimate on the number of provisions dealing with marine science and its application would support this submission. Undoubtedly, figures alone, how- ever impressive they might be, could not justify general appraisals. Nevertheless, it is to be noted that on the subject matter under consideration there are about 15 articles in pt. 5 (Exclusive Economic Zone), 12 articles in pt. 11. (The Area), six articles in pt. 7 (High Seas), five articles in pt. fit (Continental Shelf), and some provisions in other parts of the Convention. About 17 articles deal with the role of marine science in the protection and preservation of the marine environment.

61. See articles 19, 21, 39, 40, 45, 52, and 54 of the Convention.

62. Report of the Sea-Bed Committee, UNGA, Official Records, 27th sess., Suppl. 21 (1972), p. 59. It should also be mentioned that several proposals were submitted that reflected the paramount importance of oceanic research to effective national and international efforts to combat pollution of the marine environment. 63. See, e.g., C. E. Curtis and J. N. Barnes, "Deep-Sea Mining and the Environ- ment," in U.S. Department of Commerce, The Environmental Impact of Ocean Mining- Deep Ocean Mining Environmental Study (Washington, D.C.: Government Printing Office, 1981), pp. 1-31.

64. See, e.g., articles 202, 203, 244, 266, 269, 272, 274, 276, 277, and others.


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