Abstract
Fitness for purpose of the 1982 United Nations Convention on the Law of the Sea (LOSC) in the twenty-first century has been at the core of legal and political discussions. Such an inquiry is pertinent for small island developing States (SIDS), which have experienced first-hand the consequences of anthropogenic disturbances on the ocean. This study examines whether the provisions governing marine scientific research (MSR) in the LOSC provide mechanisms to strengthen SIDS scientific and technological capacities. It is suggested that the framework governing MSR seeks to promote fair and equitable benefit sharing and has rules enabling the time element therein. Accordingly, the consent regimes for MSR, rules on international cooperation, and the framework for the transfer of marine technology could serve the end of enhancing SIDS capacities. This interpretation shifts the avenues of inquiry from a descriptive to an empirical perspective.
Introduction1
Jules Verne’s book Twenty Thousand Leagues under the Seas, written at the end of the nineteenth century, portrays a fictional account of Captain Nemo’s scientific journey on a submarine through the underwater world.2 Captain Nemo and his crew are nationals of what are today widely described as developed States, exploring the waters of developing States.3 Likewise, in the real world, rarely is science independent of geopolitics and international strategic considerations, and the question arises as to who benefits from scientific discoveries.4
After Jules Verne’s visionary account, most marine scientific research (MSR) continued to be undertaken by governments of developed States, perpetuating practices of colonial science.5 However, in recent times, United Nations documents and reports, such as the Second World Ocean Assessment, reinforced the need to strengthen national capacities in marine science and technology, especially in countries at the forefront of the climate crisis and sea level rise, such as the small island developing States (SIDS).6
Since the 1990s, SIDS have had a clear standing in international negotiations pertaining to the ocean.7 However, their positioning was different during the negotiations for the regulation on MSR under the 1982 United Nations Convention on the Law of the Sea (hereinafter LOSC or the Convention).8 Consequently, the ‘constitution of the ocean’ lacks special rules dedicated to SIDS.9 Against this background, this article inquires whether the framework governing MSR in the LOSC is fit for purpose to address the needs of SIDS in the twenty-first century.
Four assumptions are taken as a point of reference to answer this question. First, the temporal dimension of treaties must be taken into account in their interpretation and implementation.10 In this sense, the Convention is considered a living instrument with openings and tools to accommodate changing circumstances and needs.11 Second, the LOSC’s objective is to provide a global order for the ocean, balancing the respective interests, rights, and obligations of coastal vis-à-vis other States, with the aim to facilitate, amongst others, the study, protection, and preservation of the marine environment.12 Third, the history of international law is not linear and single; thereafter, any exercise of revisiting the past is an intervention in the present.13 Fourth, the consent regimes are at the core of the compromise reached in Part XIII of the LOSC, which are intertwined with the provisions regulating international cooperation, the protection of the marine environment (Part XII), and the transfer of marine technology (Part XIV).14 It is suggested that the framework’s potential has been restrained by an interpretation that insufficiently considers obligations to promote the sharing of benefits within the provisions governing MSR and overlooks existing tools thereof able to adapt it to current needs.15
Most provisions regulating MSR in the LOSC are located in Part XIII, which sets general rules applicable to MSR activities across all marine zones and rules on international cooperation.16 Part XIII regulates the conduct and promotion of MSR in the territorial sea, exclusive economic zone (EEZ), and on the continental shelf and governs the deployment of scientific research installations and equipment in the marine environment. Furthermore, it outlines rules governing responsibility, liability, the settlement of disputes, and interim measures. In areas under national jurisdiction, coastal States shall provide prior authorisation before other States may initiate an MSR project. The rights and obligations entailed in permitting an MSR project form the ‘consent regimes’.
The SIDS needs considered are to strengthen national and regional capacities in marine science and technology. Science and technology capacities entail (i) training and capacity development; (ii) national and regional technological infrastructure, including equipment and platforms; (iii) access to data, information, and knowledge; and (iv) legal and policy frameworks enabling the fulfilment of international obligations and preventing colonial science.17
Colonial science refers to the practice of researchers from developed States undertaking MSR in areas under the jurisdiction of developing States without engaging with the local scientific community or investing in human capacity or infrastructure. Such a practice reproduces colonial relations of power imbalance, ignores local knowledge and maintains a dependency on external expertise.18
While seeking to avoid anachronism and generalisations, the acronym ‘SIDS’ is used when discussing periods predating the formal advent of this group in the 1990s to facilitate reference to the States later classified in the group. In this article, SIDS comprises the States listed in Table 1. The documents analysed focus on the statements by representatives of the Caribbean and Pacific SIDS (C&PSIDS), which are the islands and low-lying States listed in Table 2.
List of SIDS considered for this study
Citation: The International Journal of Marine and Coastal Law 37, 3 (2022) ; 10.1163/15718085-bja10099
Source: OHRLLS, ‘List of SIDS’ available at https://www.un.org/ohrlls/content/list-sidsIndependence timeline of the Caribbean and Pacific SIDS
Citation: The International Journal of Marine and Coastal Law 37, 3 (2022) ; 10.1163/15718085-bja10099
Sources: Prepared by the a uthor based on Kno wledge Walk Institute, ‘Independence in the Caribbean’ a vailable at http://www.caribbeanelections.com/education/independence/default.asp; PD Deckker, ‘Decolonisation processes in the South Pacific Islands: A comp arative analysis between metr opolitan powers’ (1996) Victoria University of Wellington Law Review 355–371; Pacific Islands Legal Information Institute, ‘Pacific Islands Trea ty Series: Countr y information’ available at http://www.paclii.org/pits/en/country_information.shtml; Firth (N 21)Materials and Methods
This study begins by contextualising the SIDS and what commonalities unite the group. This followed by a review of the literature on SIDS’s emergence as an interest group in international negotiations on the ocean and how their needs have been at the forefront of the ocean governance agenda post-LOSC.
The assessment of the Convention’s fitness for purpose follows a three-step approach. First, SIDS’s participation in negotiating MSR at the First United Nations Conference on the Law of the Sea (UNCLOS I) is compared and contrasted with their influence when negotiating the consent regimes at the Third United Nations Conference on the Law of the Sea (UNCLOS III).19 Second, three mechanisms in which developing countries at UNCLOS III requested a fair and equitable benefit sharing to enable SIDS scientific and technological capacities are analysed. Third, the study examines the existence of standards providing flexibility in the laws governing MSR.
The majority of SIDS are located in the Caribbean and Pacific regions. Such geographical proximity was relevant for groupings at UNCLOS I and UNCLOS III. It also enabled advancing regional cooperation mechanisms on the law of the sea and MSR in the past and present. Conversely, the geographical dispersion of the Atlantic, Indian Ocean and South China Sea (AIS) SIDS challenges regional coordination. For these reasons, this piece focuses on the statements from representatives of the C&PSIDS.
A total of 98 archival records, that is, travaux préparatoires, were reviewed to substantiate the first and second steps mentioned above. Using the research tool provided on the website of the United Nations Codification Division, statements of the Caribbean States independent at the time of the negotiation of the Geneva Convention on the Continental Shelf (CSC) at UNCLOS I were located and assessed, accounting for nine documents. The same online tool was used when assessing interventions in the Third Committee at UNCLOS III from the C&PSIDS requesting opportunities for fostering scientific and technological capacities. One round of data collection searched the name of each C&PSIDS participating in the Third Committee. The findings were classified into three topics: the definition of MSR, the consent regimes, and MSR in areas beyond national jurisdiction (ABNJ). Only the statements related to the consent regimes are discussed in this study. A second round searched for keywords (i.e., marine scientific research, scientific research, benefit, sharing, technology, transfer of technology). The results included discussions in the Third Committee, Plenary Meetings, and the Second Committee. References to economic or commercial benefits are outside the scope of this study and, therefore, were excluded.
After the two rounds of searching and applying the exclusion criteria, 89 documents were examined; however, not all are cited in this article. Secondary sources, such as reports and literature, also substantiated the analysis.
Small Island Developing States: A Special Interest Group in the Post-LOSC Era
SIDS are geographically located in the Caribbean, Pacific, Atlantic, and Indian Oceans and in the South China Sea.20 They share a social, cultural, and economic link to the marine environment and historical experiences of colonisation.21 In many of these islands, traditional knowledge underpins their perceptions of society, nature, and the world.22 In certain cases, the ocean is considered a sacred living entity and a part of their heritage.23 The primary economic activities of many SIDS are directly connected to the oceans, for example, tourism, shipping, mining, and fishing.24 Their limited landmass usually restricts resilience and increases dependence on imports, transportation, and energy.25 Their colonial past allegedly is one of the reasons for their late participation in international negotiations (Table 2) and their present status as developing States26 – inculding eight of them that are classified as least developed countries (LDCs).27
There is considerable variation in the classification of SIDS. Distinctive lists have been adopted by the UN Department of Economic and Social Affairs, UN Conference on Trade and Development (UNCTAD), and the UN Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries, and Small Island Developing States (UNOHRLLS).28 Against this backdrop, this study follows the list of UNOHRLLS that comprises a group of 38 islands and low-lying States and 20 territories classified either as non-self-governing or non-members of the UN (Table 1).
SIDS influence on international law-making pertaining to the oceans can be examined in stages marked by (i) the numeric increase in independent SIDS participating in intergovernmental negotiations and (ii) the establishment of SIDS as a special interest group.
A Chronology of SIDS Participation in International Forums Pertaining to the Ocean
The increased participation of SIDS in negotiations was fundamental to insert their interests in the international law of the sea. Only Cuba, the Dominican Republic, and Haiti represented SIDS at UNCLOS I.29As a result, the outcome of the negotiations did not reflect their aspirations when compared with UNCLOS III.
With the benefit of hindsight, UNGA Resolution 1514(XV) of 1960,30 which declared the granting of independence to countries and peoples, was a defining moment in the process of decolonisation and was followed by an increase in the number of independent SIDS.31 Of the 29 States members of the group of C&PSIDS, 18 were at the concluding meeting of UNCLOS III. Some territories, notably SIDS located in the Pacific, participated as UN Trust Territories, achieving a certain degree of representation.32 Such an increase in number likely assisted in asserting rights favouring their interests in the Convention.33 However, SIDS’ full participation at UNCLOS III was still likely compromised because many were not independent at that time or already were sovereign but lacked the expertise and human resources to engage in all topics discussed. Moreover, without a group to speak on their behalf, some of their claims fell within the agenda of overarching groups (e.g., G77).34
Discussions on adopting a different treatment for developing island countries were inaugurated on the international stage during the 1960s and 1970s in the context of adopting a New International Economic Order (NIEO) championed by UNCTAD.35 Between 1976 and 1982, following UNCTAD’s work, UNGA adopted resolutions compelling developed countries and UN organisations to adopt rules and actions to improve developing island nations economies, transport systems, access to technology, and response to natural disasters. Nonetheless, these efforts lost momentum at UNCTAD between 1987 and 1992.36 Consequently, the LOSC does not harbour special rules dedicated to SIDS.
On the environmental front, during the 1980s, the discovery that human activities can alter the climate system and increase sea level motivated the creation of a collective bloc in international negotiations to address the concerns of small islands.37 Following the Small States Conference on Sea-Level Rise in 1989, at the Second World Climate Conference, the Alliance of Small Island Developing States (AOSIS) was established.38 It assembled the already existing Caribbean Community (CARICOM), Indian Ocean Commission, and Pacific Island Forum39 and successfully advanced environmental principles in international law by demonstrating the common concerns of SIDS regarding climate change.40
Another landmark was the 1992 United Nations Conference on Environment and Development (UNCED) at Rio de Janeiro. The legal and policy instruments adopted at UNCED acknowledged the strong connection of SIDS with the ocean and their vulnerability to changes therein.41 Since then, many international agreements relating to sustainable development have dedicated rules for SIDS, including stressing the need to build their human and technological capacities.42 However, most of these instruments are either political commitments or lack legal binding force.
Large Ocean States in the Forefront of Current Discussions on Ocean Governance
In recent times, SIDS have championed debates about equitable access to marine scientific knowledge and technology at different levels of the political and legal fronts. An example of this is the inclusion of the topic ‘capacity-building in science and technology for SIDS’ in the UNGA’s yearly resolutions on oceans and the law of the sea.43 Equally relevant was their influence on adopting the stand-alone Sustainable Development Goal on the ocean and climate, which prescribes targets directed to SIDS.44 The recent emphasis on climate change and sea level rise in the work of the UNGA and the International Law Commission (ILC) was an additional consequence of SIDS’ advocacy.45
Furthermore, the groups representing SIDS – particularly AOSIS, CARICOM, and PSIDS – have been highly influential in the ongoing negotiations of an implementing agreement on biodiversity beyond national jurisdiction (BBNJ).46 Amongst other topics, these groups have championed the importance of traditional knowledge and ecological connectivity in ABNJ; asked for a revision of the common heritage of humankind principle; advocated the implementation of the obligation in the LOSC to transfer technology and scientific knowledge; and sought fair and equitable mechanisms for sharing the benefits of marine genetic resources.47
Notwithstanding the awareness raised by SIDS’ advocacy, given the LOSC’s role as the core legal instrument regulating activities at sea and the persistent asymmetries in the distribution of capacities in marine sciences, one might wonder whether the legal framework can respond to the needs of SIDS in the twenty-first century.48
Is the Framework Governing MSR at the LOSC Fit for Purpose to Address the Needs of SIDS in the Twenty-First Century?
In the 40 years since UNCLOS III was concluded, it is impossible to determine how the Convention would look if SIDS had been a negotiating group in the 1950s and 1970s. Nevertheless, the preamble of LOSC stresses the aim to facilitate the study of the marine environment by all States. Likewise, it would be expected from an international treaty considered as the ‘constitution of the ocean’ that mechanisms to incorporate social changes over time would be included. The suitability of the laws regulating MSR to strengthen SIDS’ scientific and technological needs begins by assessing their participation in negotiating the consent regimes for MSR at UNCLOS I and III.
SIDS Participation in Establishing the Consent Regimes for MSR
SIDS Participation in UNCLOS I
UNCLOS I was convened in 1958, and, at its conclusion, four conventions were adopted, including the CSC, the first to regulate MSR.49 The disagreement at the core of the CSC negotiation was the expansion of coastal States’ rights over the continental shelf. In addition, developing States requested the revision of the long-standing principle of the freedom of the seas, which, in light of technological developments, was said to benefit developed States mainly.50
Eighty-six States participated in the negotiations, of which the representatives of the C&PSIDS were only Cuba, the Dominican Republic, and Haiti.51 They worked with other developing States, particularly in Latin America, on matters of common concern.52
Article 5(1) of the CSC precludes any exploratory activity on the continental shelf by coastal States from unjustifiably interfering with ‘fundamental oceanographic or other scientific research carried out with the intention of open publication’ taking place on the high seas.53
A proposal from Indonesia introduced the requirement of prior consent from coastal States for any research ‘concerning the shelf and undertaken there’ (Article 5(8), CSC).54 With a French proposal, this prerequisite was balanced with the duty to ‘normally’ provide it when the project (i) is submitted by a ‘qualified institution,’ (ii) seeks ‘purely [to conduct] research into the physical or biological characteristics of the continental shelf,’ (iii) aims to have its results published, and (iv) allows the coastal States’ participation or representation in the research (Article 5(8), CSC).55
SIDS and developing States’ participation in negotiating the rules on MSR was minimal, and no particular statement stressing their perspective on MSR could be found. As a result, the regulation of MSR on the CSC is modest, privileges the freedom of the seas, employs ambiguous terminology, and does not elaborate on coastal States’ rights to participate in research projects.56 Over time, the increasing number of ‘new’ States and technological advances contributed to the legal framework’s inability to keep pace with the conflicting interests.
SIDS Participation in UNCLOS III
Developing a comprehensive regulation for MSR was on the international agenda since the late 1960s because the Latin American States accused States conducting research in areas under their national jurisdiction of failing to satisfy the obligations to request consent, allow for coastal States’ participation, and share samples and data from the research conducted.57
The precise legal definition of MSR was problematic for all States. There was consensus that the activity should focus on the marine environment, which is different from ‘scientific research,’ ‘research,’ and meteorological data collection.58 Parties also agreed that it should fall under a distinctive legal framework than the one applicable to prospecting, exploration, and exploitation.59 Nonetheless, no definition for MSR was agreed upon. Consequently, the coastal States’ right to provide prior consent for foreign research vessels became the mechanism to determine which activities were classified as such.60
Designing the consent regimes in Part XIII of the LOSC demanded the most strenuous compromise from developed and developing States, and coastal and researching States. Initial discussions on Part XIII oscillated between sovereignty and freedom. Trinidad and Tobago proposed the breakthrough compromise consisting of attenuating degrees of control being attributed to the coastal State in each maritime zone.61 The delegations accepted this proposal, which is why it is accurate to refer to several consent regimes.62
Consent for MSR in the Territorial Sea
In light of coastal State sovereignty, the limits to the freedom of research in the territorial sea were agreed upon from the outset. Article 245 of the LOSC is straightforward in requiring ‘express consent’ from coastal States for all MSR activities as an ‘exclusive right’.63 In complement, undertaking research when engaged in innocent passage, transit passage, and passage through archipelagic sea lanes is considered a breach of ‘the peace, good order or security of the coastal State’ (Articles 19(j), 40 and 54, LOSC). Similar rights were extended to archipelagic waters.
Consent for MSR in the Exclusive Economic Zone and on the Continental Shelf
Agreeing to the regulation of MSR in the EEZ and on the continental shelf was comparatively more laborious. The compromise established a complex framework of rights and obligations for coastal via-à-vis other States in which Articles 246, 248, and 249 of the LOSC are central.64
The right of prior consent from coastal States was maintained in exchange for a reduction of the discretion to deny it under ‘normal circumstances,’ when the research is for peaceful purposes and aims to increase knowledge of the marine environment for the benefit of humankind (Article 246(3)).65
Predicated on coastal States sovereign rights and jurisdiction, the discretion to withhold consent remained when the research (i) is of direct significance for the exploration and exploitation of natural resources; (ii) involves drilling into the continental shelf, the use of explosives, or the introduction of harmful substances in the marine environment; or (iii) comprises the construction of artificial islands, installations, and structures. Coastal States can also deny consent when the project contains inaccurate information about the project’s nature and objective and when the researching State has pending obligations from a previous project (Article 246(5)). The former provision was agreed upon to hold researching States accountable for the information provided and enforce its duties, particularly post-cruise obligations.66
A restrictive form of consent was agreed upon on the extended continental shelf, where it can only be withheld in areas previously designated for ‘exploitation or detailed exploratory operations’ (Article 246(6)). Trinidad and Tobago, and other developing States, opposed this form of consent, advocating for the integrity of the continental shelf concept.67 However, it ended up being accepted as part of the compromise.
Pre-cruise Obligations
When proposing research in the EEZ or on the continental shelf, researching States must provide coastal States with a description of the project no less than six months before its starting date (Article 248). This obligation allows for an assessment of the nature of the research and whether it is of ‘direct significance for the exploration and exploitation of natural resources’ (Article 246(5)(a)).68
Upon receiving the information, coastal States must communicate a decision within four months, or else consent is implied. Developing States agreed with the list of information to be provided as a basis for the clearance. However, they opposed the adoption of implied consent, arguing that it would lead to a misuse of Part XIII and infringe upon their jurisdiction (Article 252). Additionally, they opined that implied consent would put a burden upon States missing human resources and capacity to clear the consent request on time.69 However, once more, they had to accept it to reach a compromise.70
Post-cruise Obligations
Developing countries were dissatisfied with the lack of compliance with the post-cruise obligations under the CSC. Hence, in exchange for easing restrictions on MSR in the EEZ and on the continental shelf, developing States focused on advancing the obligations for researching States to comply with during and after a MSR project.71
Springing from coastal States’ sovereign rights over the new maritime zones, developing countries set forth ambitious demands, including access to scientific and technical capacities and property over samples, data, and specimens collected.72 The agreement ended up following the zonal approach with nuances. Coastal States can impose any conditions in exchange for consent in internal waters, the territorial sea, and archipelagic waters. In the EZZ and on the continental shelf, such discretion is limited to when clearance can be denied. In all other situations, researching States have to comply only with the obligations listed in Article 249 of the LOSC, which are obligations of conduct.
Already established in the CSC, coastal States’ right to participate in research through observers remained (Article 249(1)(a)). Additionally, the research results shall be made available internationally. However, to accommodate developing States’ concerns over data from resource-related research, in such cases, the publication of the research results can be restrained (Article 249(1)(e) and (2)).73
Researching States have to provide coastal States with preliminary reports ‘as soon as practicable,’ ‘undertake to provide’ access to data and samples, and support the latter in the assessment of samples and data if requested (Article 249(1)(a)(b)(c)(d)).74 In addition, to avoid significant disturbances to the marine environment, scientific equipment must be removed after the conclusion of the research, if not otherwise agreed (Article 249(1)(g)).
Researching States must inform coastal States of any significant change in the scientific activity; otherwise, the activity might be suspended (Article 249(1)(f)). Non-compliance with post-cruise obligations can justify withholding consent for future MSR projects (Article 246(5)(d)).75
Suspension and Cessation of the MSR Project
Coastal States claimed the right to request the suspension and cessation of a MSR project as inherent to the jurisdictional rights over MSR, as established in Article 56(1)(b)(ii), and as a way to guarantee compliance with the pre- and post-cruise obligations.76 Despite opposition from researching States, it was agreed that the suspension can be requested if the MSR project is conducted in a way that differs from the documentation on which the consent was based and the researching State fails to comply with the post-cruise obligations (Article 253(1), LOSC).
The cessation of the MSR project may be requested if the researching State abstains from communicating major changes in the project or if it is unable to rectify the situation that justified the suspension within ‘reasonable time’ (Article 253(2) and (3)).
As members of the larger group of developing States, SIDS’ participation was critical to creating in the 1982 LOSC a more sophisticated regime for coastal States’ consent than the one in the 1958 CSC. Of relevance, Trinidad and Tobago’s proposed consent regimes were fundamental to resolving this deadlock by harmonising the different interests at stake. It is further suggested that the purpose of the MSR framework was expanded to include the promoting fair and equitable benefit sharing.
Mechanisms in the LOSC to Strengthen the Scientific and Technological Capacity of SIDS
The concept of fair and equitable benefit sharing in international law was first developed under the umbrella of the NIEO, and subsequently incorporated in debates over sustainable development and ecosystem services.77 The most notable expression of benefit sharing in the LOSC is the common heritage of humankind (CHH) and regulation thereof in Part XI.78
Less noticed, the request for the CHH also carried the claim to ‘a natural right to free access to technology’79 in the Area, and some States advocated that the findings of international MSR projects should belong to all humankind.80 Likewise, it has been overlooked that Ambassador Arvid Pardo’s statement also prompted discussions about the right to access marine technology, scientific knowledge, and data in other maritime zones as springboards to the right to development.81
Although there are inconsistencies related to the concept of fair and equitable benefit sharing (see footnote 15), the production and use of knowledge are accepted as triggers to international benefit-sharing obligations in the context of the human right to science.82 Therefore, the need to share benefits from MSR projects was not only prompted by Ambassador Arvid Pardo, it is inherently linked to a human right, even if Part XIII does not make a direct reference to it.
Legal instruments rarely provide an exhaustive list of benefits, but some examples can be identified. The International Treaty on Plant Genetic Resources for Food and Agriculture mentions the exchange of information, access to and the transfer of marine technology, capacity building, and the sharing of monetary and other benefits of commercialisation.83 The World Health Organization Pandemic Influenza Preparedness Framework focuses on allocating vaccines, antivirals and diagnostic materials, pandemic surveillance and risk assessment, sharing information, capacity building, and the transfer of technology and know-how as modalities of benefits to be shared.84 The Convention on Biological Diversity expressly refers to promoting access to marine genetic resources, the transfer of technology and access to funding as benefits.85 Annexe I to the Nagoya Protocol cites monetary and non-monetary benefits, including sharing research and development results, cooperation in scientific research, training and capacity building, admittance to databases, transfer of knowledge, information and technology, and legal and policy support.86
Springing from the examples above, all the needs of SIDS in the twenty-first century guiding this study – namely, training and capacity development, technological infrastructure, access to data, information, and knowledge, and assistance to develop legal and policy frameworks – are accepted modalities of benefits (Table 3). An attentive reading of the LOSC reveals that those benefits are found within the rules on the consent regimes for MSR, international cooperation on MSR, and obligations to transfer marine technology. This section focuses on examining whether and how the consent regimes provide opportunities to share the benefits from MSR activities, briefly commenting on how measures to strengthen science and technology capacities are manifested in the other mechanisms.
Modalities of benefits to strengthen scientific and technological capacities of SIDS considered for this study
Citation: The International Journal of Marine and Coastal Law 37, 3 (2022) ; 10.1163/15718085-bja10099
Source: Prepared by the authorConsent Regimes for MSR in the 1958 CSC and the 1982 LOSC
Turning first to the 1958 CSC, the proposal of a prior consent introduced by Indonesia in Article 5(8) aimed at satisfying the coastal State with the bona fides of a proposed MSR project.87 Hence, the parties intended to preserve the freedom of scientific research while providing coastal States with safeguards to protect national security and rights over resources.
Scholars agree that participation should occur at every stage of an MSR project, including during the preparatory work and when accessing raw data for the analytical phase. Nevertheless, slim consideration has been paid to the purpose of this participation or to the legal consequences of breaching such obligation.88
From the records consulted, no debates on the conditions permitting the withholding of consent were found. This absence can be explained because these conditions were inspired by resolutions of the International Science Council (ICSU), which acknowledged the scientific community’s awareness of the security and resource interests involved in coastal States’ rights over the continental shelf.89
A survey of municipal laws and State practices related to the 1958 CSC confirmed that coastal States’ consent served to assess the project’s scientific nature and its repercussions for exploiting resources and national security.90 However, States were also using the consent process to increase knowledge about the continental shelf and to pursue capacity building.91
Judicial interpretations of the consent’s purpose and the discretion to withhold it are limited by the nonexistence of a procedure for dispute settlement in the CSC. The Aegean Sea Continental Shelf case had in its background the distinction between MSR and exploration and the obligation to request prior consent.92 Nonetheless, the International Court of Justice found no jurisdiction to adjuticate this case.93 Therefore, based on the travaux préparatoires and subsequent practice, coastal State consent served the sole purpose of attesting that no exploratory or military aims were in the background of a proposed scientific research project.
Turning to the 1982 LOSC, it was the outcome of comprehensive negotiations in which developing countries pursued a more equitable international order alongside related projects such as the NIEO. Following Trinidad and Tobago’s proposal, a plethora of consent regimes were established, differing according to each maritime zone under the coastal State’s jurisdiction. Developing States made numerous attempts to connect the obligation to grant consent for MSR to the sovereign rights to conserve and manage natural resources and the rights to access scientific knowledge and research infrastructure. By doing so, it is suggested that the purpose of the consent regimes was expanded compared to what was agreed upon in the 1958 CSC to include the sharing of benefits.
Looking back at the historical records, developing States went beyond concerns over security and resource-related activities, requesting researching States to consider national scientific and technology needs when proposing MSR projects in maritime areas under their jurisdiction.94 For instance, on one occasion, the representative of Cuba stressed that
in the case of the developing countries, in particular, that right [of access to the data obtained through scientific research] would have no substance unless it was accompanied by regulations governing the transfer of technology, the training of specialists and scientists from those countries, and the development of research facilities to analyse and utilize such data in the national interest.95
On another occasion, the representative of Nigeria proposed that ‘the coastal State whose territory was involved could participate in the research and share in the benefits of the data obtained therefrom’.96
Developed States took into account such requests and, to an extent, accepted them. For instance, when describing matters of consideration, the Canadian delegation explained that
within areas under their jurisdiction, however, the developing States wanted to have some voice in setting the priorities for such research and to participate not only in the execution of scientific ventures by outside agencies but also in the planning and follow-up of those ventures to obtain training for their technical and scientific personnel and strengthen their research capabilities.97
However, developed States avoided using technology transfer and scientific benefits as a bargain in exchange for MSR approval.98
The request to accommodate the sharing of benefits within the purpose of the consent regimes – and Part XIII – can also be inferred from the resolution on development of national marine science, technology and ocean service infrastructures approved in Annex VI. The resolution affirms the LOSC’s purpose to provide the same weight to promoting the equitable and efficient utilisation of marine resources and the study, protection, and preservation of the marine environment. It also stresses that developing States need to share in marine science and technology achievements.99
Although limited and quite outdated, information on the practice of States reveals a common understanding that post-cruise obligations entail capacity building and other opportunities.100 Moreover, certain coastal States have conditioned the clearance on assurances of participation, data information exchange, and/or protection of the marine environment.101
Judicial interpretations on the purpose of the consent regimes and related obligations are constrained by Article 297(2), which authorises the coastal State to opt out of the compulsory dispute resolution mechanism controversies related to the coastal State’s right to withhold consent and to request the suspension of a MSR project.102
Some scholars concur that post-cruise obligations can be considered benefits in the sense of those set forth by the Nagoya Protocol.103 However, international law scholarship lacks a detailed assessment demonstrating it.
Modalities of Benefits to Strengthen Scientific and Technological Capacities of SIDS Related to the Consent Regimes
The expansion of the consent regimes’ purpose to include measures to strengthen developing countries’ scientific and technological capacities was followed by the addition of new post-cruise obligations. Therefore, when using its sovereign rights over natural resources to grant consent in areas under national jurisdiction, coastal States prompt the right to benefit from the MSR project.
In internal waters, the territorial sea, and archipelagic waters, the coastal State enjoys full discretion to set conditions to enhance science and technology capacities, including monetary benefits (Article 245) such as access fees.104 In the EEZ and on the continental shelf, such discretion is limited to when coastal States can withhold consent, including in the case of resource-related research (Articles 246(5(a)) and 249(2)).105 Generally, the conditions must be previously determined in municipal laws and regulations (Article 249(2)).
Article 249 enumerates obligations that researching States have to comply with during and after a cruise. Predicated on the similarity between the benefits listed in Article 249 and those in other legal instruments and on the debates during UNCLOS III, it is fair to conclude that the consent regime’s purposes expanded its scope from only surveillance to include enhancing the marine science and technology capacities of developing States.
The enforcement of almost all the post-cruise obligations is conditioned to ‘when practicable’, ‘as soon as practicable,’ and when requested by the coastal State. Conversely, the obligation to inform coastal States of any significant change in the scientific activity is the only obligation with direct applicability and can justify the suspension or cessation of the MSR project.106
The existing State practice demonstrates that coastal States, including SIDS, rely on the capacity-building opportunities and scientific data enabled by foreign scientists. Access to data, samples, and results has been pointed out as a relevant mechanism of non-monetary benefits.107 However, it has been reported that local needs are rarely considered in the planning. Additionally, the enjoyment of benefits has been impinged by a lack of human or technical resources, an inability to understand the language in which the information is provided, and/or property rights implications.108 It has also been reported that researching States have occasionally failed to comply with post-cruise obligations, particularly with sharing final reports.109 Such a situation could trigger the use of Article 246(5)(d), denying permission for future MSR applications.
International Cooperation in MSR
Promoting international scientific cooperation was the backbone of the MSR regime from the outset, mainly due to the high costs of performing science at sea.110 Such a framework cross-cuts all maritime spaces and potentially facilitates procedures of granting consent and fulfilling pre-and post-cruise obligations.
The historical records attest that enabling the scientific and technological capabilities of developing States, including transferring technology and sharing data, was within the scope of section two of Part XIII.111 In effect, the language of benefit sharing emerges from the general obligation of States and international organisations to encourage collaboration ‘on the basis of mutual benefit’ (Article 242(1)).
The promotion of international cooperation entails (i) with regards to the planning and operational stages, the creation of favourable conditions for undertaking research and building the autonomous science and technology capacities of developing States (Articles 143 (3)(a)(b), 243, 244(2)) and (ii) with regards to the assessment and integration of information, the exchange of data, information, and knowledge, including the necessity to prevent and control damage to the health and safety of persons and the marine environment, particularly for developing States (Articles 143(3)(c), 242(2), 244).112 It is worth noting the similarity of these benefits to those listed in other legal instruments dealing with benefit sharing.
Outside of Part XIII, scientific cooperation and knowledge exchange are significant elements in protecting the marine environment, considering the transboundary effects of pollution of the marine environment (Articles 197, 200, 201, 202, 205). Additionally, most of the provisions to develop and transfer marine technology in the LOSC are rooted in international scientific cooperation (e.g., Articles 266, 269, 270, 271, 272, 273, 275, 276, 278).113
International organisations have a primary mandate to promote cooperation. At the global level, most of the efforts made by the UN to develop SIDS’s science and technology capacities are prompted through cooperation.114 Many efforts have been made to implement capacity-building programmes and to share data and knowledge related to MSR, including legal and policy aspects. Some examples include the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (IOC UNESCO), the Division for Ocean Affairs and the Law of the Sea, the International Maritime Organization, the World Maritime University, the International Seabed Authority (ISA or the Authority), the Food and Agriculture Organization of the United Nations, the United Nations Environment Programme, and the World Meteorological Organization (WMO).115 Of particular relevance, IOC UNESCO has the mandate to follow the implementation of Parts XIII and XIV and to establish criteria and guidelines connected with such topics (Article 251).116
At subregional and regional levels, AOSIS, CARICOM, the Indian Ocean Commission, PSIDS, the Organization of Eastern Caribbean States, regional fisheries bodies, Regional Seas Programmes, and the Commonwealth Secretariat have championed partnerships to develop science and technology capacities.117 Funding has been enabled by the World Bank, Global Environment Facility, regional development banks, and the ISA Endowment Fund. The work of non-governmental organisations on these matters has also been acknowledged.118
The Ocean Science Center Mindelo in Cape Verde resulted from a successful case of international cooperation between States.119 Another example is the implementation strategy offered in the Belem Statement.120
However, despite international cooperation being a relevant mechanism in promoting the sharing of benefits from MSR projects, recent studies demonstrate that developing States’ participation in scientific collaboration is unsatisfactory.121 Therefore, similar to the conclusion concerning consent regimes, implementation of the laws governing international cooperation is inadequate.
Beyond Part XIII, a last mechanism in the LOSC able to enable scientific and technological capacities of SIDS is the framework governing the transfer of marine technology.122
Transfer of Marine Technology
The LOSC enshrined two sets of rules regarding the transfer of marine technology. The first is within Part XI, setting mandatory obligations on the Authority and State Parties to facilitate marine technology transfer to the Enterprise and developing States in the Area (Article 144, LOSC; Article 5, Annex III).123 The second is in Part XIV, where States, competent international organisations, and the Authority are subject to precatory obligations to foster the transfer of technology and scientific knowledge and develop regional and local scientific infrastructure and human capacity.124
Following uncertainty over the worldwide acceptance of the LOSC, the 1994 Agreement changed the regime governing the seabed set up in 1982, favouring developed States’ interests.125 The new compromise agreement replaced the mandatory duty in Part XI to transfer technology to developing States or the Enterprise with the due regard obligation of cooperation to that end.126
Promoting a fair and equitable share of benefits is also visible in the language used in Part XIV. For instance, the transfer of marine science and technology must be promoted on ‘fair and reasonable terms and conditions’ (Article 266(1)), ‘for the benefit of all parties concerned on an equitable basis’ (Article 266(3)), and in ‘equitable and reasonable conditions’ (Article 269(b)).127
The connection between Part XIII and Part XIV, initiated at the negotiations of UNCLOS III, is noticeable when comparing the two and assessing the consequences of implementing each.128 For instance, inasmuch as obligations under Part XIV aim to foster marine scientific capacities and infrastructure and facilitate MSR (e.g., Articles 266, 270, 275, 276), the enforcement of these rules would be beneficial to fulfilling obligations under Part XIII.129
Despite international efforts, the implementation gap of Part XIV is noticeable.130 Equally to what has been pointed out regarding Part XIII, existing State practice reveals that limited human and financial resources, reduced sustained funding, property rights implications, and reports of MSR projects using language non-accessible to coastal States have been deterrents.131
The BBNJ negotiations can address some of these issues, as capacity building and technology transfer are part of the agenda. Albeit uncertainties over its outcome, it is hoped that the new agreement will influence the implementation of Parts XIII and XIV.
Intertemporal Aspects of the Framework Governing MSR
The passage of time is a significant aspect when appraising the adequacy of the LOSC to the present.132 The doctrine of intertemporal law requires the interpreter to balance a static and a dynamic element in interpreting treaties.133 Whereas the former provides legal stability, the latter, in the case of the LOSC, assures the progressive achievement of the Convention’s objective and purpose.
The LOSC is a product of the 1970s and 1980s; nevertheless, it has been considered a ‘living instrument,’ able to keep pace with new scientific knowledge and technological advances.134 For instance, there is broad acknowledgement of the changes performed by the 1994 and 1995 implementing agreements and the potential implications of the agreement coming out of the BBNJ negotiations.135 Additional forms of adaptation can result from the rules of reference to public international law, evolutionary treaty interpretation and subsequent practice.136 In this regard, the last step to determine whether the LOSC is fit for purpose to address SIDS necessities in the twenty-first century is to assess whether the laws governing MSR have mechanisms to incorporate the time element within the legal obligations.
An examination of the literature and State practice reveals that Articles 239, 243, 246(1), 246(3), 249(2), 250, and 255 are key to adjusting static legal standards to social, regional, scientific, and technological changes.137 One set of such rules is related to the duty to cooperate to promote and facilitate the conduct of MSR projects by partnerships or communication through agreed or official channels. By using such rules, States are called on to adapt the terms of the Convention to the specificities of recent MSR projects. The other is connected to the coastal States’ obligations to adopt rules, regulations, and procedures, facilitating access to ports and ensuring that consent will not be delayed or denied without justification. By using such norms, municipal laws can adjust the terms of Part XIII to local and regional particularities. Table 4 lists articles of the LOSC that facilitate incorporating the passage of time within Part XIII.
LOSC articles that facilitate incorporating the time element within Part XIII
Citation: The International Journal of Marine and Coastal Law 37, 3 (2022) ; 10.1163/15718085-bja10099
Source: Prepared by the authorAlbeit limited, information on State practice demonstrates that early informal communication between scientists from coastal and researching States occurs to some extent and has been encouraged to overcome deadlocks when implementing the legal framework.138 For instance, direct contacts could elucidate how to promote coastal States’ participation in research using unmanned maritime autonomous systems (MAS) where on board involvement is not possible. It could also facilitate incorporating local needs in research projects, such as studies about the Sargassum in the Caribbean Sea. Likewise, States could identify whether previous research has collected similar samples and/or used methodology and refer the proposer to it, thus avoiding replication and stimulating effective usage of marine resources.139
When exercising the right to regulate the conduct of MSR, coastal States can put forward detailed conditions for protecting the marine environment and share benefits insofar as these are not in contravention with the LOSC.140 Indeed, a review of State practice shows national laws requiring the submission of risk or environmental impact assessments and imposing additional permits, fees, and strict rules for foreign scientists to access protected areas.141 In such cases, including other requirements in pre-cruise obligations, seem to follow the laws governing MSR and the evolution of international standards to protect the marine environment.
The regulations and guidelines developed by the IOC in 2007 and 2008 for the deployment of profiling floats in the Argo Program are a concrete example of tailoring the laws governing MSR to accommodate the element of time. Floats have the quality of drifting freely in the oceanscape, which makes it difficult to determine whether an incursion into waters under the jurisdiction of a State will take place.142 Therefore, States agreed on a multilateral basis that IOC and WMO would serve as clearinghouse mechanisms for notifying States concerned about the potential entrance of floats into their waters. IOC and WMO must also avoid the public release of data of direct significance for the exploration and exploitation of natural resources in areas under the jurisdiction of a State and consider how to maximise the number of States participating in a project.143 Even though this example is not restricted to SIDS, it demonstrates that Part XIII has the scope to accommodate innovations in the performance of MSR, advances in the protection of the marine environment, and geographical needs in terms of knowledge and technology.
Conclusion
The contemporary journeys that follow in the wake of Captain Nemo’s fictitious expedition beneath the sea occur in a changing oceanscape in which environmental threats faced worldwide are more dramatic than in 1870 when Jules Verne wrote his futuristic novel. Realising the persistent unequal distribution of scientific and technological capacities, this study argues that Part XIII of LOSC has the potential to meet the needs of SIDS in the 21st century.
In the aftermath of the second wave of decolonisation, C&PSIDS participation at UNCLOS III, as part of the developing States’ group, was fundamental to establishing a sophisticated framework in which the tension between coastal States’ jurisdiction over maritime zones are potentially balanced with the freedom to undertake MSR. Beyond that, their participation was fundamental to expanding the purpose of the consent regimes for MSR to incorporate the fair and equitable sharing of benefits, particularly in Article 249. A similar ambition is found in the rules governing international cooperation and the transfer of marine technology. Furthermore, the framework governing MSR provides openings to accommodate new circumstances without compromising legal stability. Together, these three legal mechanisms combined with the rules to provide flexibility under Part XIII to open opportunities to enable SIDS’ scientific and technological capacities.
It must be acknowledged, however, that the benefits have not been duly shared, and colonial science remains a frequent practice.144 The level of human resources in marine science and infrastructure in SIDS are inadequate to face the environmental threats ahead of them,145 the participation of developing States in MSR cooperative projects is still reduced,146 and Part XIV suffers an implementation gap that can only be partially fulfilled in the BBNJ negotiations. Realising that fair and equitable benefit sharing is under the purpose of Part XIII shifts the question from a purely normative inquiry – the more legislation approach – to an empirical question on how such rules have been implemented, how to optimise the framework’s implementation, and if the modalities of benefit sharing are sufficient to respond to the challenges faced by SIDS in the twenty-first century.
An interesting first step towards effectuating the benefit-sharing opportunities of Part XIII would be to collect SIDS’ practices regarding consent regimes. Such an exercise could assist in understanding how SIDS have enjoyed the benefits under Part XIII, the nature of potential shortcomings faced, and demonstrate whether the best practices might constitute de lege ferenda. Another relevant follow-up investigation would be to collect the practice of States non-party to the LOSC on MSR to assess whether the scope of the consent regime in the 1958 CSC has changed or whether benefits have been shared based on customary law. These undertakings seem appropriate in the current moment since the UN Decade of Ocean Science for Sustainable Development and BBNJ negotiations create a good environment to promote MSR for all humankind.147
The author would like to extend sincere gratitude for the valuable comments provided by the peer reviewer. Thanks are extended to Dr. Montserrat Gorina-Ysern, Dr. Ríán Derrig, Ms. Genevieve Quirk, Dr. Harriet Harden-Davies, Ms. Luisa Hedler, Mr. Alex Oliveira, and Ms. Julia Weston for providing comments on an earlier version of this manuscript as well as to Professor Ronán Long and Dr. Zhen Sun for supervising the study. This article is part of a PhD research project under the Land-to-Ocean Leadership Programme, at the World Maritime University (WMU)-Sasakawa Global Ocean Institute. The author would like to acknowledge the generous funding by The Nippon Foundation, as well as the financial support from the Swedish Agency for Marine and Water Management (SwAM) and the German Federal Ministry of Transport and Digital Infrastructure.
J Verne, Vingt mille lieues sous les mers (J Hetzel, Paris, 1870).
The classification ‘developed and developing States’ is used in this study due to its relevance both in UNCLOS III and in the context of the United Nations, for example in the Sustainable Development Goals. It follows the classification provided by the UN Statistic Division in which the group of developed states encompasses the United States, Canada, Japan, Israel, Australia, New Zealand and European States. N Dados and R Connell, ‘The Global South’ (2012) Contexts 11(1) 12–13. doi:10.1177/1536504212436479 available at http://journals.sagepub.com/doi/10.1177/1536504212436479; L Nielsen, ‘Classifications of countries based on their level of development: How it is done and how it could be done’ available at https://unstats.un.org/unsd/methodology/m49/. All websites accessed on 5 July 2022, unless otherwise mentioned.
A Chircop, ‘Advances in ocean knowledge and skill: Implications for the MSR regime’ in M Nordquist et al. (eds), Law, Science & Ocean Management (Martinus Nijhoff Publishers, Leiden, 2007) 575–615, at p. 576; BDS Santos, Epistemologies of the South: Justice against Epistemicide (Taylor & Francis, New York, 2015) 193.
Santos (n 4), at p. 199; K Isensee (ed), ‘Global Ocean Science Report 2020: Charting Capacity for Ocean Sustainability’ (UNESCO Publishing, Paris, 2020).
This article utilises the terminology SIDS due to its usage by the United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and the Small Island Developing States (UN-OHRLLS). The limitations of such terminology are acknowledged, as well as the emergence of other classifications, such as ‘large ocean States’. For more details, see A Hume et al., ‘Towards an ocean-based large ocean States country classification’ (2021) 134 Marine Policy 104766; UN, The Second World Ocean Assessment, Volume 1 (United Nations, New York, 2021) available at https://www.un.org/regularprocess/sites/www.un.org.regularprocess/files/2011859-e-woa-ii-vol-i.pdf; E Popova et al., ‘Ecological connectivity between the areas beyond national jurisdiction and coastal waters: Safeguarding Interests of coastal communities in developing countries’ (2019) 104 Marine Policy 90–102; MK Vierros and H Harden-Davies, ‘Capacity building and technology transfer for improving governance of marine areas both beyond and within national jurisdiction’ (2020) 122 Marine Policy 104158; R Davis and H Quentin, ‘The law of the sea and ocean governance small island States and the LOS Convention 30 years on : Have the benefits been realized?’ (2012) Ocean Yearbook 49–85.
ABM Vadrot, A Langlet and IT Wysocki, ‘Who owns marine biodiversity? Contesting the world order through the “common heritage of humankind” principle’ (2021) 31(2) Environmental Politics 226:250.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 31363 [LOSC].
TTB Koh, ‘Negotiating a new world order for the sea’ (1983) Virginia Journal of International Law 761–784.
Y Tanaka, ‘Reflections on time elements in the international law of the environment’ (2013) 73 Harvard Journa of International Law 139–175.
H Woker et al., ‘The law of the sea and current practices of marine scientific research in the Arctic’ (2020) 115 Marine Policy 103850; I Buga, ‘Between stability and change in the Law of the Sea Convention: Subsequent practice, treaty modification, and regime interaction’ in D Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (3rd edn, Oxford University Press, Oxford, 2015); A Boyle, ‘Further development of the Law of the Sea Convention: Mechanism for change’ (2013) 54(3) International and Comparative Law Quarterly 563–584, at p. 563. T Heidar ‘How does the law of the sea adapt to new knowledge and changing circumstances?’in T Heidar (ed), New Knowledge and Changing Circumstances in the Law of the Sea (Brill Nijhoff, Leiden, 2020) 1–12. See also, Separate Opinion of Judge Lucky, Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 92.
LOSC (n 8), preamble; Boyle (n 11), at p. 566; C Salpin, ‘The law of the sea: A before and an after Nagoya?’ in E Morgan, M Buck and E. Tsioumani (eds), The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective: Implications for International Law and Implementation Challenges (Martinus Nijhoff Publishers, Leiden, 2013)149–183, at p. 151.
GRB Galindo, ‘Para que serve a história do direito internacional?’ (2015) 2 Revista de Direito Interncional 338–359, at p. 359; C Storr, International Status in the Shadow of Empire: Nauru and the Histories of International Law (Cambridge University Press, Cambridge, 2020) 26.
See UN Doc A/CONF.62/L.18; E Jarmache, ‘Sur quelques difficultes de la recherche scientifique marine’ in La mer et son droit (Pedone, Paris, 2003) 303–314 at 305; M Nordquist et al. (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. IV, Articles 192 to 278, Final Act, and Annex V (Martinus Nijhoff Publishers, Dordrecht, 1985) 540; S Huh and K Nishimoto, ‘Article 246’ in A Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Nomos Verlagsgesellschaft, Munich, 2017) 1662; R Long, ‘Marine science capacity building and technology transfer: Rights and duties go hand in hand under the 1982 UNCLOS’ in M Nordquist et al. (eds), Law Science and Ocean Management, (Martinus Nijhoff Publishers, Leiden, 2007).
The terms ‘fair and equitable benefit sharing’ and ‘benefit sharing’ are used interchangeably in the context of actions and programmes enabling the strengthening of marine science and technology capacities of SIDS, particularly in needed areas. This study acknowledges the absence of an international legal concept of fair and equitable benefit sharing. Equally, there are multiple legal connotations for this term, including a ‘treaty objective, an international obligation, a right, a safeguard or a mechanism’ (E Morgera, ‘The need for an international legal concept of fair and equitable benefit sharing’ (2016) 27 European Journal of International Law 353–383, at p. 355). In spite of the relevance in discussing the status of ‘fair and equitable benefit sharing’ in international law, that is, customary norm, a general principle of international law, and its links to the principle of equity, this article opts to not address this issue, since it deviates from the legal argument proposed. Also, only in situ access to resources is considered, despite the current debate on the understanding of ‘access’, particularly in the context of genetic resources (see Salpin (n 12)).
Relevant rules on MSR can also be found in Articles 21, 40, 56, 143, 226, 270, 275, 276, 277, Annex VI, and Annex VIII. RP Anand, Origin and Development of the Law of the Sea (Martinus Nijhoff Publishers, The Hague, 1982) 209–211.
H Harden-Davies and P Snelgrove, ‘Science collaboration for capacity building: Advancing technology transfer through a treaty for biodiversity beyond national jurisdiction’ (2020) 7(40) Frontiers in Marine Science 1–14; C Salpin et al., ‘Marine scientific research in Pacific small island developing States’ (2018) 95 Marine Policy 363–371; PV Stefanoudis et al., ‘Turning the tide of parachute science’ (2021) 31(4) Current Biology R184–R185.
A de Vos, ‘The problem of “colonial science”‘ (2020) Scientific American available at https://www.scientificamerican.com/Article/the-problem-of-colonial-science/; Stefanoudis et al. (n 17).
Convention on the Continental Shelf (Geneva, 29 April 1958, in force 10 June 1964) 499 UNTS 311.
OHRLLS, ‘About Small Island Developing States’ available at https://www.un.org/ohrlls/content/about-small-island-developing-states.
S Firth, ‘Sovereignty and independence in the contemporary Pacific’, (1989) 1 The Contemporary Pacific 75–96; T Frere, CY Mulalap and T Tanielu, ‘Climate change and challenges to self- determination: Case studies from French Polynesia and the Republic of Kiribati’, (2020) 129 Yale Law Journal Forum 648–673.
UN Doc A/CONF.62/L.6; CY Mulalap et al., ‘Traditional knowledge and the BBNJ instrument’ (2020) Marine Policy 104103.
UN Doc A/CONF.62/L.6.
PG Patil et al., Toward a Blue Economy: A Promise for Sustainable Growth in the Caribbean (World Bank, Washington, DC, 2016) available at https://openknowledge.worldbank.org/handle/10986/25061.
H Harden-Davies et al., Science in Small Island Developing States Capacity Challenges and Options Relating to Marine Genetic Resources of Areas Beyond National Jurisdiction, Report for the Alliance of Small Island States (University of Wollongong, Australia, 2020) 34–39; Patil et al. (n 24).
Firth (n 21); Frere, Mulalap and Tanielu (n 21).
According to the UN, the classification of LDCs is based on per capita gross national income, the human assets index and the economic vulnerability index. In February 2022, the following SIDS are considered LDCs: Comoros, Guinea-Bissau, Haiti, Kiribati, São Tomé e Príncipe, Solomon Islands, Timor-Leste, and Tuvalu (OHRLLS, ‘Profiles of LDCs’ available at https://www.un.org/ohrlls/content/profiles-ldcs).
Davis and Quentin (n 6); Hume et al. (n 6).
United Nations Conference on the Law of the Sea, ‘List of delegations’ available at https://legal.un.org/diplomaticconferences/1958_LOS/docs/english/vol_2/delegations.pdf.
UN Doc A/RES/1514(XV).
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Reports 2019, p. 95, para 150 [Chagos Advisory Opinion]. The absence of many States from UNCLOS I and II was acknowledged by UNGA as one of the reasons for a reformed regime for the ocean in preambular paragraphs of Resolution 2750(XXV) (UN Doc A/RES/2750(XXV)).
This was the case for Western Samoa, Nauru, Papua New Guinea, Micronesia, Marshall Islands, Northern Mariana Islands and Palau (UN Doc A/CONF.62/119).
UN Doc A/CONF.62 /119; Davis and Quentin (n 6).
UN Doc A/CONF.62/WS/27. In the Chagos Advisory Opinion (n 31), the ICJ raised questions on a party’s full capacity to consent when it is still under the authority of other States. The Primer Minister of the Cook Islands underlined a similar argument during the negotiations of UNCLOS III, stating that ‘he was impressed by the consideration that the Conference was giving to the developing States, but he also felt some concern as to whether the circumstances of small island States such as his own were fully appreciated by those who had the influence and strength to decide the matters before the Conference…. He hoped that the Conference would pay special attention to small island States. In appealing for recognition of their position, he included his neighbours in the Pacific, some of which were not directly represented at the Conference. Those States, like his own, were dependent on the sea: it did not seem reasonable that they should also be deprived of the full benefits of an economic zone’ (UN Doc A/CONF.62/SR.46). There were indeed topics where SIDS successfully protected their interests. For instance, since UNCLOS I, Indonesia and the Philippines have sought to advance the archipelagic State concept without success. At UNCLOS III, they were joined by newly independent SIDS aspirants for archipelagic status, that is, Fiji, Mauritius, Tonga, Papua New Guinea, and the Bahamas, and managed to develop a regime for archipelagos. Anand (n 16), at pp. 202, 213; SN Nandan and KE Dalaker, Reflections on the Making of the Modern Law of the Sea (Ridge Books, Singapore, 2021) 84–90.
The NIEO was a response to developing States’ demands to replace the economic order of that time, which was predicated on the principles of liberalism and the free market, for a system that would ensure substantive and procedural equality. See J Grote, ‘The Changing tides of small island States discourse: A historical overview of the appearance of small island States in the international arena’ (2010) 43 Law and Politics in Africa, Asia and Latin America 164–191; Hume et al. (n 6).
Grote (n 35).
Ibid.
PS Chasek, ‘Margins of power: Coalition building and coalition maintenance of the South Pacific Island States and the Alliance of Small Island States’ (2005) 14 Review of European, Comparative & International Environmental Law 125–137; Grote (n 35).
The Pacific Islands Forum (PIF) was established in 1971, and was previously called the South Pacific Forum. Currently, the Pacific Small Islands Developing States (PSIDS), which includes the members of the PIF except Australia and New Zealand, is the primary group representing the Pacific Islands at the United Nations. See F Manoa, ‘The new pacific diplomacy at the United Nations: The rise of the PSIDS’ in G Fry and S Tarte (eds), The New Pacific Diplomacy (ANU Press, Australia, 2015) 89–91.
TN Slade, ‘The making of international law: The role of small island States’ (2003) 17 Temple International and Comparative Law Journal 531–543.
Davis and Quentin (n 6).
Slade (n 40). For instance, see UN Docs A/RES/66/288 and A/65/69, para 323. For the purpose of this article, capacity development is understood as ‘a perpetually evolving process’ in which ‘individuals, organizations and societies obtain, strengthen and maintain the capabilities to set and achieve their own development objectives over time’ (UN Doc A/65/69, para19). The the terms capacity building and capacity development are used interchangeably in this article.
For instance, see UN Docs A/RES/74/19, A/RES/74/18, A/RES/73/124, A/RES/72/73.
Manoa (n 39), at p. 97; G Quirk and Q Hanich, ‘Ocean diplomacy: The Pacific Island countries’ campaign to the UN for an ocean Sustainable Development Goal’ (2016) 1 Asia-Pacific Journal of Ocean Law and Policy 68–95.
For instance, see UN Docs A/75/70, A/64/350, A/74/10.
EM De Santo et al., ‘Stuck in the middle with you (and not much time left): The Third Intergovernmental Conference on Biodiversity beyond National Jurisdiction’ (2020) 117 Marine Policy 103957; Vadrot, Langlet and Wysocki (n 7); UN Doc A/RES/72/249.
De Santo et al. (n 46); Vadrot, Langlet and Wysocki (n 7); Harden-Davies et al. (n 25); Popova et al. (n 6); A Rogers et al., ‘Marine genetic resources in areas beyond national jurisdiction: Promoting marine scientific research and enabling equitable benefit sharing’ (2021) 8 Frontiers in Marine Science.
Isensee (n 5).
The other treaties are: Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958, in force 10 September 1964) 516 UNTS 205; Convention on the High Seas (Geneva, April 1958, in force 30 September 1962) 450, UNTS 82; and Convention on Conservation of the Living Resources of the High Seas (Geneva, 29 April 1958, in force 20 March 1966) 559, UNTS 825. The Optional Protocol of Signature concerning the Compulsory Settlement of Disputes was also concluded in 1958 (Geneva, 29 April 1958, in force 30 September 1962, 169 UNTS 450).
Anand (n 16) at 209; FV Garcia-Amador, ‘The Latin American contribution to the development of the law of the sea’ (1974) 68(1) American Journal of International Law 33–50, at p. 44; VM Rangel, ‘O novo direito do mar e a América Latina’ (1979) 74 Revista da Faculdade de Direito 41–51; HT Franssen, ‘Developing country views of sea law and marine scientific research’ (1973) Freedom of Oceanic Research 137–178, at p. 139.
United Nations Conference on the Law of the Sea (n 29).
Garcia-Amador (n 50), at p. 42.
M Gorina-Ysern, An International Regime for Marine Scientific Research (Transnational Publishers, New York, 2003) 253.
UN Doc A/CONF.13/C.4/L.53.
UN Doc A/CONF.13/C.4/L.56. In accordance with the understanding of the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (IOC-UNESCO), this article uses the terms ‘consent’ and ‘authorisation’ as synonyms if not otherwise mentioned. See United Nations, Marine Scientific Research: A Revised Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea (2nd ed., DOALOS, New York, 2010).
Franssen (n 50), at pp. 140–141.
Gorina-Ysern (n 53), at pp. 283, 287.
UN Doc A/CONF.62/C.3/SR.46; AHA Soons, Marine Scientific Research and the Law of the Sea (TMC Asser Instituut, The Hague, 1982) 125; FHT Wegelein, Marine Scientific Research: The Operation Status of Research Vessels and Other Platforms in International Law (Martinus Nijhoff Publishers, Leiden, 2005) 80.
Soons (n 58), at pp. 118–125.
Chircop (n 4); United Nations (n 55), at p. 29.
UN Docs A/CONF.62/C.3/L.9 and A/CONF.62/C.3/SR.13.
Nordquist et al. 1985 (n 14), at pp. 507–518.
Ibid., at p. 495.
UN Docs A/CONF.62/L.18 and A/56/58; S Huh and K Nishimoto, ‘Article 249’ in Proelss (ed) (n 14), at pp. 1680–1681; Jarmache (n 14), at pp. 306–307.
UN Doc A/CONF.62/C.3/SR.30.
Huh and Nishimoto (n 14), at p. 1662.
UN Docs A/CONF.62/L.50 and A/CONF.62/C.3/SR.42.
Huh and Nishimoto (n 64), at p. 1677.
UN Docs A/CONF.62/SR.135 and A/CONF.62/C.3/SR.46.
UN Dosc A/CONF.62/SR.135 and A/CONF.62/WP.10/Add.1.
UN Docs A/CONF.62/C.3/SR.9; A/CONF.62/SR.135; A/CONF.62/C.3/L.9; A/CONF.62/C.3/L.13*; CV Kries and G Winter, ‘Harmonizing ABS conditions for research and development under UNCLOS and CBD/NP’ in E Chege Kamau, G Winter and P-T Stoll (eds), Research and Development on Genetic Resources: Public Domain Approaches in Implementing the Nagoya Protocol (Routledge, London, 2015) 75–90.
UN Doc A/CONF.62/SR.135, A/CONF.62/C3/L.9, A/CONF.62/C.3/L.13*.
Nordquist et al. 1985 (n 14) at 537–63.
UN Doc A/CONF.62/C.3/SR.9.
Huh and Nishimoto (n 14) at 1663.
UN Doc A/CONF.62/C.3/SR.42.
The Universal Declaration of Human Rights could be considered the first international document to make reference to benefit sharing. It does so exactly in reference to everyone’s right ‘to share in scientific advancement and its benefits’ (Universal Declaration of Human Rights, Geneva, adopted 10 December 1948, UNGA Res 217 A(III), Article 27). Nonetheless, its declaratory nature raises questions on its normative content. See Morgera (n 15).
Morgera (n 15); K Mickelson, ‘Common heritage of mankind as a limit to exploitation of the global commons’ (2019) 30 European Journal of International Law 635–663; A Jaeckel, ‘Benefitting from the common heritage of humankind: From expectation to reality’ (2020) 35 International Journal of Marine and Coastal Law (IJMCL) 660–681; A Jaeckel, JA Ardron and KM Gjerde, ‘Sharing benefits of the common heritage of mankind: Is the deep seabed mining regime ready?’ (2016) 70 Marine Policy 198–204.
D Yarn, ‘The transfer of technology and UNCLOS’ (1984) Georgia Journal of International and Comparative Law 121–153.
UN Doc A/CONF.62/C.3/SR.9. Indeed, the LOSC (n 8) connects the purpose of MSR in the Area to benefit all humankind (Article 143(1)).
UN Doc A/CONF.62/C.3/SR.8.
E Morgera, ‘Fair and equitable benefit-sharing: History, normative content and status in international law’ (22 June 2017) available at https://doi.org/10.2139/ssrn.2956927; E Morgera, ‘Fair and equitable benefit-sharing at the cross-roads of the human right to science and international biodiversity law’ (2015) 4 Laws 803–831.
International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, 3 November 2001) 2400 UNTS 303.
World Health Organization (WHO), Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits (WHO Doc WHA64.5, 24 May 2011).
Convention on Biological Diversity (CBD) (Rio de Janeiro, 5 June 1992, in force 29 December 1993) 1760 UNTS 79.
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya, 29 October 2010, in force 12 October 2014), CBD Decision X/1 (2010), Annex I.
UN Doc A/CONF.13/C.4/L.53.
Gorina-Ysern (n 53), at p. 271; Soons (n 58), at p. 75.
Gorina-Ysern (n 53), at p. 234.
Ibid., at p. 274.
Soons (n 58), at p. 75.
Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports 1978, p. 3.
Ibid.
UN Docs A/CONF.62/C.3/SR.9,A/CONF.62/C.3/SR.30, and A/CONF.62/C.3/SR.8.
UN Doc A/CONF.62/C.3/SR.9; see also UN Docs A/CONF.62/C.3/SR.41, A/CONF.62/C.3/SR.42.
UN Docs A/CONF.62/SR.135, A/CONF.62/C.3/SR.9.
UN Doc A/CONF.62/C.3/SR.9.
UN Doc A/CONF.62/C.3/SR.8.
UN Doc A/CONF.62/120.
Affirmations on State practice rely on different sources. First, from 2002 to 2008, the Advisory Body of Experts on the Law of the Sea (ABE-LOS) of the IOC UNESCO collected data on the State practice of its members in implementing Part XIII and provided recommendations on how to improve it (EJ Tirpak, ‘Practices of States in the Fields of Marine Scientific Research and Transfer of Marine Technology: An Update of the 2005 Analysis of Member State Responses to Questionnaire No. 3’, Doc IOC/ABE-LOS VIII/8 (2009) available at https://unesdoc.unesco.org/ark:/48223/pf0000218773 United Nations (n 55)). This initiative was discontinued in 2011. Second, the compilation of State practice made by Gorina-Ysern (n 53) over fourteen years assessed, in particular, the recordings of the State Department of the United States. Third, Roach compiled challenges faced in enforcing Part XIII through the perspective of the United States (J Ashley Roach, Excessive Maritime Claims (4th edn, Brill Nijhoff, Leiden, 2021) 510). The last source comes from a report commissioned by AOSIS, published in 2020, about the capacity and challenges faced by Member States in accessing and managing marine genetic resources in ABNJ (Harden-Davies et al. (n 25)).
United Nations (n 55), at p. 31; Tirpak (n 100); Gorina-Ysern (n 53), at p. 334; Huh and Nishimoto (n 64), at p. 1681.
M Gorina-Ysern, ‘Marine scientific research: Overview of major issues, programmes and their objectives’ in HD Smith, JLS de Vivero and TS Agardy (eds), Routledge Handbook of Ocean Resources and Management (Routledge, London, 2015) 127–142. Coversely, scholars argue that Article 297(2) does not exclude all options of legal appreciation of the consent regimes. For instance, the duty to provide consent under ‘normal circumstances’ and to establish rules and procedures ensuring the authorization will not be delayed or denied unreasonably would still be under the binding dispute settlement mechanism. This interpretation would not favour States with reduced human resources to process the consent request rapidly and without legal capacity to establish detailed rules on the matter. See Roach (n 102), at p. 519.
Salpin (n 12); Kries et al. (n 71).
Salpin (n 12).
Ibid.; Huh and Nishimoto (n 64), at p. 1689.
Nordquist et al. 1985 (n 14), at p. 551; Gorina-Ysern (n 53), at p. 339.
United Nations (n 55), at pp. 30–31; Tirpak (n 100).
United Nations, ibid., at p. 35; Tirpak, ibid.
UN Doc A/56/121; Gorina-Ysern (n 53), at p. 178.
Y Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Routledge, London, 2016) 346; I Papanicolopulu, ‘Article 242’, in Proelss (ed) (n 14), at p. 1632; EJ Hind et al., ‘Fostering effective international collaboration for marine science in small Island States’ (2015) 2(86) Frontiers in Marine Science 1–7; Vierros and Harden-Davies (n 6); B Maas et al., ‘Women and Global South strikingly underrepresented among top‐publishing ecologists’ (2021) 14(4) Conservation Letters e12797.
UN Docs A/CONF.62/C.3/SR.8, A/CONF.62/C.3/SR.9.
Harden-Davies and Snelgrove (n 17); Papanicolopulu (n 110), at pp. 1634–1635; United Nations (n 55), at p. 27.
Harden-Davies and Snelgrove, ibid.
For instance, see UN Docs A/65/69, A/RES/70/235*, A/RES/69/15, A/74/350, A/75/340.
UN Doc A/65/69; United Nations (n 55); Gorina-Ysern (n 53), at pp. 551–558; Gorina-Ysern (n 102).
For instance, UN Doc IOC/INF-1222.
Gorina-Ysern (n 53), at pp. 537–558; R Billé et al., ‘Regional oceans governance: Making regional seas programmes, regional fishery bodies and large marine ecosystem mechanisms work better together’ in PALD Nunes, LE Svensson, and A Markandya (eds), Handbook on the Economics and Management of Sustainable Oceans (Edward Elgar Publishing, Cheltenham, 2017) 493–518; J Rochette and R Billé, ‘Bridging the gap between legal and institutional developments within regional seas frameworks’ (2013) 28(3) IJMCL 433–463; N Oral, ‘Forty years of the UNEP Regional Seas Programme: From past to future’ in R Raufyse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar Publishing, Cheltenham, 2015) 339–362.
UN Doc A/65/69.
A Polejack and LF Coelho, ‘Ocean science diplomacy can be a game changer to promote the access to marine technology in Latin America and the Caribbean’ (2021) 6 637127 Frontiers in Research Metrics and Analytics 1–11.
Rogers et al. (n 47); A Polejack, S Gruber and MS Wisz, ‘Atlantic ocean science diplomacy in action: The Pole-to-Pole All Atlantic Ocean Research Alliance’ (2021) 8 Humanities and Social Sciences Communications 1–11.
P Tolochko and ABM Vadrot, ‘The usual suspects? Distribution of collaboration capital in marine biodiversity research’ (2021) 124 104318 Marine Policy; Hind et al. (n 110).
M Pavliha and NM Gutiérrez, ‘Marine Scientific Research and the 1982 United Nations Convention on the Law of the Sea’ (2010) 16 Ocean and Coastal Law Journal 115–133; Long (n 14).
According to Article 170(1) of the LOSC (n 8), the Enterprise ‘shall be the organ of the Authority which shall carry out activities in the Area directly, pursuant to Article 152, paragraph 2(a), as well as the transporting, processing and marketing of minerals recovered from the Area’.
Yarn (n 81); Pavliha and NM Gutiérrez (n 122).
Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, (New York, 28 July 1994, in force 28 July 1996) 1836 UNTS 3; GRB Galindo, ‘“Quem Diz Humanidade, Pretende Enganar”?: Internacionalistas e Os Usos Da Noção de Patrimônio Comum da Humanidade Aplicada aos Fundos Marinhos (1967–1994)’ (PhD Thesis, University of Brasilia, 2006) 339.
Jaeckel (n 80).
Salpin (n 12).
UN Doc A/CONF.62/C.3/SR.8.
Harden-Davies and Snelgrove (n 17); Long (n 14).
Harden-Davies and Snelgrove, ibid.; Salpin (n 12); Long, ibid.
United Nations (n 55) 35; Tirpak (n 100).
Tanaka (n 10).
Ibid.
Separate Opinion of Judge Lucky (n 11); Buga (n 11); Heidar (n 11); Rob McLaughlin, ‘Reinforcing the Law of the Sea Convention of 1982 through clarification and implementation’ (2020) 25 Ocean and Coastal Law Journal 130–163.
Boyle (n 11); Buga (n 11); Rogers et al. (n 47).
Buga (n 11); Tanaka (n 10); H Zhang, ‘Redefining marine scientific research in UNCLOS: Could evolutionary interpretation play any role?’ in K Zou and A Telesetsky (eds), Marine Scientific Research, New Marine Technologies and the Law of the Sea (Brill Nijhoff, Leiden, 2021).
Nordquist et al. 1985 (n 14), at pp. 477, 556.
United Nations (n 55), at p. 44.
Rogers et al. (n 47).
Salpin (n 12); United Nations (n 55), at p. 31.
United Nations (n 55), at pp. 30–31.
Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly Regarding the Deployment of Profiling Floats in the High Seas Within the Framework of the Argo Program, IOC Executive Council Res EC-XLI.4, Executive Council of the IOC-UNESCO, 41st sess. Agenda Item 4.2.2, UN Doc IOC/EC-XLI/3 Annex II (29 July 2008); H Harden-Davies, ‘The regulation of marine scientific research: Addressing challenges, advancing knowledge’ in R Warner and S Kaye (eds), Routledge Handbook of Maritime Regulation and Enforcement (Routledge, London, 2015).
Guidelines for the Implementation of IOC Resolution XX-6 (n 142).
For instance, de Vos (n 18); Stefanoudis et al. (n 17).
Isensee (n 5).
Tolochko and Vadrot (n 121).
UN Doc A/RES/72/73.
