LLB 1st Batch

ROBERT BILOTT

A corporate defense lawyer working for the law

firm Taft Stettinius & Hollister, USA

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Legal Professionals
Law of the Sea (Part II)
ø Marine Scientific Research (MSR)
ø Development and Transfer of Marine Technology
ø Protection of Underwater Cultural Heritage
ø Settlement of Disputes
ø General Provisions
ø Settlement of Disputes
ø General Provisions
ø Commission on the Limit of Continental Shelf
ø Basic Conditions of Prospecting, Exploration and Exploitation
ø Statute of the Enterprise
ø Conciliation, Statute of International Tribunal for the Law of the Sea
ø Arbitration, Special Arbitration, Participation by International Organizations
Marine Scientific Research
LAW OF THE SEA ( PARTII)
MSR
Construct
SECTION 1. General Provisions (Art 238 – 241)
SECTION 2. International Cooperation (Art 242 – 244)
SECTION 3. Conduct and Promotion of Marine Scientific Research (Art 245 – 257)
SECTION 4. Scientific Research Installations or Equipment in the Marine
Environment (Art 258 – 262)
SECTION 5. Responsibility and Liability (Art 263)
SECTION 6. Settlement of Disputes and Interim Measures (Art 264 – 265)
Treaty Law
• UNCLOS III is essentially an international treaty
• The interpretation and application of treaties are governed by Vienna Convention on the Law
of Treaties 1969
• Article 31 sets out a general rule of interpretations
• Article 32 provides the supplementary means of interpretations
• The general rule as stated in article 31 reads “A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose”
• Article 32 states, “Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable”

6
MSR
Background
• Not regulated under any international treaty until the 1950s; customary law was the main source
• Increased ocean-based scientific research and tech development after WW II, together with their
gradual application to resource exploration and exploitation and military purposes
• International community was prompted to develop & codify international legal framework
• MSR was first considered during the 1st UN Conference on the Law of the Sea in 1958
• Among the four 1958 Geneva Conventions, the Convention on the Continental Shelf specifically
provides in its art. 5, para. 8, that “the consent of the coastal State shall be obtained in respect of
any research concerning the continental shelf and undertaken there. Nevertheless the coastal State
shall not normally withhold its consent if the request is submitted by a qualified institution with a
view to pure scientific research into the physical or biological characteristics of the continental
shelf, subject to the proviso that the coastal State shall have the right, if it so desires, to participate
or to be represented in the research, and that in any event the results shall be published”
• Elements contained in art. 5 would become the basis for detailed provisions for the MSR regime
• Marine scientific research was not specifically addressed in the Convention on the High Seas
MSR
What is Marine Scientific Research under the Convention?
• Not defined in the Convention despite various proposals made for a definition during the
negotiations for the 3rd Convention on the Law of the Sea
• A general definition proposed during the 2nd Conference was, “any study, whether fundamental or
applied, intended to increase knowledge about the marine environment, including all its resources
and living organisms, and embraces all related scientific activity”
• In 1973, during the 3rd Conference, a description of what was termed “scientific research in the
world ocean” put fwd was, “... any fundamental or applied research and related experimental work,
conducted by States & their juridical and physical persons, as well as by international org, which
does not aim directly at industrial exploitation but is designed to obtain knowledge of all aspects of
the natural processes and phenomena occurring in the ocean space, on the seabed and subsoil
thereof, which is necessary for the peaceful activity of States for the further development of
navigation and other forms of utilization of the sea and also utilization of the airspace above the
world ocean”. With this definition, marine scientific research was recognized as a right “only with
regard to research of no direct significance for the exploration and exploitation of marine
resources, to be conducted in maritime zones not subject to the jurisdiction of coastal States”
MSR
What is Marine Scientific Research under the Convention?
• In 1974, a draft art. 1 on definitions was proposed as follows: “(a) Marine Scientific Research is
any study or investigation of the marine environment and experiments related thereto; (b) Marine
Scientific Research is of such a nature as to preclude any clear or precise distinction between pure
scientific research and industrial or other research conducted with a view to commercial
exploitation or military use”.
• Concerns were expressed that it was impossible to make a distinction between pure scientific
research and industrial or other research, and that rather “… a fundamental distinction should be
made between open basic scientific research, carried out for the benefit of the community, without
concern for profit, and industrial research”
• It was argued that the main difference lay “in the possibility of immediate utilization of industrial
research for economic purposes, while scientific research, which did not involve the same restraints
on time and efficiency for the sake of specific results, yielded data which were accessible to all, were
not of a secret nature, and were public property”
• The difficulty of clearly distinguishing between research for the exploration & exploitation of
marine resources and research not for those, became the core issue of the negotiations
MSR
What is Marine Scientific Research under the Convention?
• By 1975 other formulations were put forward describing marine scientific research as: (a)
“any study of, or related experimental work in, the marine environment that is designed to
increase man’s knowledge and is conducted for peaceful purposes”; and (b) “… any study and
related experimental work conducted in the marine environment designed to increase
mankind’s knowledge thereof”
• The Informal Single Negotiating Text issued in 1976, provided in its draft Part III, art. 48,
that: “for the purpose of this Convention, ‘marine scientific research’ means any study or
related experimental work designed to increase mankind’s knowledge of the marine
environment”
• By 1977, an Informal Composite Negotiating Text had been agreed upon but it did not
include a definition of “marine scientific research”
• The Convention does not contain a definition of marine scientific research. It may be noted
that “survey activities”, “prospecting” and “exploration and exploitation” are primarily dealt
with in Parts of the Convention
Military Data Gathering (MDG)
• Military Data Gathering (MDG) refers to activities in the ocean and coastal
waters involving classified and unclassified marine data collection, by military
or government owned or chartered vessels, for military purposes.
• MDG can include the gathering of hydrographic, oceanographic, marine
geological, geophysical, chemical, biological and acoustic data.
• Equipment can include, but is not limited to echo-sounders, swath systems,
side-scan sonar, bottom grab and coring systems, current meters, expendable
bottom penetrators and profilers.
• Means of data collection can be the same as for Marine Scientific Research
(MSR) but the information collected REGARDLESS of security classification is
intended for military use and is not released to the scientific community.
• MDG is not specifically addressed within UNCLOS and there is no language
stating or implying that MDG may be regulated in any manner by coastal states
outside their territorial sea or archipelagic limits.
MSR - General Provisions
• All States & competent international organizations (including IGOs) have the right to conduct MSR
(not absolute right, rather subjected to rights and duties of other States)
• States & competent international org shall promote & facilitate dev & conduct of MSR for
peaceful purposes
• Art. 240, identifies gen principles for conduct of MSR, according to which MSR shall:
(a) Be conducted exclusively for peaceful purposes;
(b) Be conducted with appropriate scientific methods & means compatible with the Convention;
(c) Not unjustifiably interfere with other legitimate uses of the sea compatible with the
Convention and shall be duly respected in the course of such uses; and
(d) Be conducted in compliance with all relevant regulations adopted in conformity with the
Convention including those for the protection and preservation of the marine environment
• Furthermore, MSR activities shall not constitute the legal basis for any claim to any part of the
marine environment or its resources (art. 241) [in line with arts. 89 and 90 & art. 137, paras. 1
and 3, on non-appropriation of the high seas and the Area respectively]
MSR - International Cooperation
• States & international org are to cooperate through bilateral & multilateral agreements,
to create favourable conditions for MSR & integrate efforts of scientists (art.243)
• States and competent international org are to make information available, on proposed
major programmes & their objectives, as well as knowledge resulting from the MSR by
publication & dissemination through appropriate channels (art. 244, para. 1);
• States, individually & in cooperation with other States and international org, shall
promote flow of scientific data & info & transfer of knowledge resulting from MSR,
especially to developing States, as well as the strengthening of autonomous MSR
capabilities of developing States, through, inter alia, programme to provide adequate
education & training of their technical and scientific personnel (art. 244, para. 2)
MSR - Conduct and Promotion
Territorial Sea
• Coastal States, in the exercise of their sovereignty, have the exclusive right to regulate, authorize
and conduct MSR in their territorial sea
• MSR shall be conducted only with the express consent of and under the conditions set forth by
the coastal State
EEZ and Continental Shelf (CS)
• Coastal States, in exercising their jurisdiction, have the right to regulate, authorize & conduct
MSR in their EEZ & CS. Research in those maritime areas may only be conducted with the
consent of the coastal State (art. 246, paras. 1 and 2)
• In normal circumstances (normal circumstances may exist in spite of absence of diplomatic
relations), grant consent for MSR to be carried out by other States or competent international
org in accordance with this Convention exclusively for peaceful purposes & in order to increase
scientific knowledge of marine environment for the benefit of all mankind
• Coastal States shall establish rules and procedures ensuring that the said consent for conducting
MSR is not be delayed or denied unreasonably (as of 2010 39 out of 72 Member States (54%) of
the IOC have national legislation regarding MSR; presently 150 members states)
MSR - Conduct and Promotion
EEZ and Continental Shelf (CS)

• Coastal States may withhold consent to the conduct of a MSR project of another State or
competent international organization if that project:
(a) is of direct significance for exploration & exploitation of natural resources, whether living or
non-living;
(b) involves drilling into the CS, the use of explosives or introduction of harmful substances into
the marine environment;
(c) involves the construction, operation or use of artificial islands, installations and structures
referred to in articles 60 and 80;
(d) contains info communicated pursuant to article 248 regarding the nature and objectives of
the project which is inaccurate or if the researching State or competent international
organization has outstanding obligations to the coastal State from a prior research project.
MSR - Conduct and Promotion
EEZ and Continental Shelf (CS)
• Coastal States may not exercise their discretion to withhold consent under subpara (a) in respect of
MSR projects on the CS, beyond 200 nautical miles from the baselines, outside those specific areas
which coastal States may at any time publicly designate as areas in which exploitation or detailed
exploratory operations focused on those areas are occurring or will occur within a reasonable period
of time. Coastal States shall give reasonable notice of the designation of such areas, as well as any
modifications thereto, but shall not be obliged to give details of the operations therein.
• The above provisions are without prejudice to the rights of coastal States over the CS as established
in article 77 (Rights of the coastal State over the continental shelf).
• MSR activities shall not unjustifiably interfere with activities undertaken by coastal States in the
exercise of their sovereign rights and jurisdiction provided for in the UNCLOS III.
• If an international org wants to conduct MSR project of which the coastal State is a member or has a
bilateral agreement with, shall be deemed to have been permitted, if that State approved the detailed
project when decision to undertake the project was made by the org, or is willing to participate in it,
and has not expressed any objection within 4 months of notification by the org (IOC has adopted a
“Procedure for the application of art. 247 of the Convention”)
MSR - Conduct and Promotion
Duty to provide information to the coastal State
States and competent international org which intend to undertake MSR shall, not less than six
months in advance of the expected starting date of the MSR project, provide that State with a full
description of:
(a) the nature and objectives of the project;
(b) the method and means to be used, including name, tonnage, type and class of vessels and a
description of scientific equipment;
(c) the precise geographical areas in which the project is to be conducted;
(d) the expected date of first appearance and final departure of the research vessels, or deployment
of the equipment and its removal, as appropriate;
(e) the name of the sponsoring institution, its director, and the person in charge of the project; and
(f) the extent to which it is considered that the coastal State should be able to participate or to be
represented in the project.
MSR - Conduct and Promotion
Duty to Comply with Certain Conditions
States & competent international org to comply following:
(a) Ensure the right of the coastal State, if it so desires, to participate or be represented in the MSR
project, especially on board research vessels & other craft or scientific research installations,
when practicable, without payment of any remuneration to the scientists of the coastal State &
without obligation to contribute towards the costs of the project;
(b) provide the coastal State, at its request, with preliminary reports, as soon as practicable, and
with the final results and conclusions after the completion of the research;
(c) provide access for the coastal State, at its request, to all data and samples derived from the MSR
project and likewise to furnish it with data which may be copied and samples which may be
divided without detriment to their scientific value;
(d) if requested, provide the coastal State with an assessment of such data, samples and research
results or provide assistance in their assessment or interpretation;
(e) ensure, subject to paragraph 2, that the research results are made internationally available
through appropriate national or international channels, as soon as practicable;
(f) inform the coastal State immediately of any major change in the research programme;
(g) unless otherwise agreed, remove the MSR installations or equipment once research is completed.
MSR - Conduct and Promotion
Implied consent
States or competent international organizations may proceed with a marine scientific research
project six months after the date upon which the information required pursuant to article 248 was
provided to the coastal State unless within four months of the receipt of the communication
containing such information the coastal State has informed the State or organization conducting
the research that:
(a) it has withheld its consent under the provisions of article 246; or
(b) the information given by that State or competent international organization regarding the
nature or objectives of the project does not conform to the manifestly evident facts; or
(c) it requires supplementary information relevant to conditions and the information provided for
under articles 248 and 249; or
(d) outstanding obligations exist with respect to a previous marine scientific research project
carried out by that State or organization, with regard to conditions established in article 249
MSR - Conduct and Promotion
Suspension or cessation of marine scientific research activities
1. Coastal State shall have the right to require the suspension of any marine scientific research
activities in progress within its exclusive economic zone or on its continental shelf if:
(a) Research activities are not being conducted according to info provided as per article 248 upon
which the consent of the coastal State was based; or
(b) State or competent international org conducting the research activities fails to comply the
conditions listed in article 249 concerning the rights of coastal State regarding the MSR project.
2. Coastal State shall have the right to require cessation of MSR activities in case of non-compliance
with provisions of art 248 so much so, that amounts to major change in research project/ activities
3. Coastal State may require cessation of MSR activities if any of the situations contemplated in
paragraph 1 are not rectified within a reasonable period of time
4. Following notification of coastal State’s decision on suspension/ cessation, States or international
org authorized to conduct MSR activities shall terminate the research activities
5. Order of suspension under para 1 shall be lifted once researching State or competent international
org has complied with the conditions required under articles 248 and 249
MSR - Conduct and Promotion
Rights of neighbouring land-locked and geographically disadvantaged States
States & competent international org, having submitted a project proposal, give notice to
neighbouring land-locked & geographically disadvantaged States of the project, & shall notify the
coastal State thereof
Having received consent of coastal State for such project, States & competent international org
undertaking such project, shall provide relevant information specified in article 248 and article
249, paragraph 1(f), to the neighbouring land-locked & geographically disadvantaged States, at
their request and when appropriate
Be given the opportunity to participate, whenever feasible, in the proposed MSR project through
qualified experts appointed by them, in accordance with the conditions for the project that are
agreed between coastal State & the State or competent international org conducting MSR
States & competent international org conducting the MSR project, shall provide to the said land-
locked & geographically disadvantaged States, at their request, the info & assistance specified in
article 249, paragraph 1(d), subject to the provisions of article 249, paragraph 2
MSR - Conduct and Promotion
Marine scientific research in the Area
All States, irrespective of their geographical location, and competent
international organizations have the right, in conformity with the provisions of
Part XI, to conduct marine scientific research in the Area.

Marine scientific research in the water column beyond the exclusive economic zone
All States, irrespective of their geographical location, and competent
international organizations have the right, in conformity with this Convention, to
conduct marine scientific research in the water column beyond the limits of EEZ
MSR - Installations or Equipment in Marine Environment
Legal Status
• The MSR related installations or equipment do not possess the status of islands
• No TS of their own, & no effect on delimitation of TS, EEZ or CS
Safety Zones
• Safety zones of a reasonable breadth not exceeding a distance of 500 metres may be created
around MSR installations according to relevant provisions of UNCLOS
Non-interference with shipping routes
• The deployment & use of any type of MSR installations or equipt shall not
constitute an obstacle to established international shipping routes
Identification markings and warning signals
• MSR Installations or equipment shall bear identification markings indicating the State of registry
or the international org to which they belong & shall have adequate internationally agreed
warning signals to ensure safety at sea and the safety of air navigation
MSR - Responsibility and Liability
• States and competent international organizations shall be responsible for ensuring that
marine scientific research, whether undertaken by them or on their behalf, is conducted
in accordance with this Convention.

• States and competent international organizations shall be responsible and liable for the
measures they take in contravention of this Convention in respect of marine scientific
research conducted by other States, their natural or juridical persons or by competent
international organizations, and shall provide compensation for damage resulting from
such measures.

• States and competent international organizations shall be responsible and liable

pursuant to article 235 for damage caused by pollution of the marine environment
arising out of marine scientific research undertaken by them or on their behalf.
MSR - Settlement of Disputes and Interim Measures
Settlement of disputes

Disputes concerning the interpretation or application of the provisions of this

Convention with regard to MSR shall be settled in accordance with Part XV, sections 2
and 3.

Interim measures

Pending settlement of a dispute in accordance with Part XV, sections 2 and 3, the State or
competent international organization authorized to conduct a marine scientific research
project shall not allow research activities to commence or continue without the express
consent of the coastal State concerned.
The End