Permission of the foreign coastal state will normally be required for all marine scientific research within 200 miles of that state. Within 200 miles, the type of authority exercised by the coastal state may vary.
There follows a description of the generally recognized zones of maritime jurisdiction in accordance with international law and the LOS Convention. It is important to recognize that islands (which must be habitable though not necessarily inhabited, as distinguished from rocks or low-tide elevations) receive the same treatment as other land territory regardless of their size.
2.1 Internal Waters. States have complete sovereignty and jurisdiction in the area of water immediately adjacent to the coast. This region, known as internal waters, generally includes rivers, harbors, lakes, and embayments. The regime of internal waters extends to the baseline from which the territorial sea is measured in accordance with international law. Certain, but not all, states have published baseline claims. Where a baseline has been established which has the effect of enclosing as internal waters areas which had not previously been considered as such, the right of innocent passage still exists in those waters. Otherwise, there is no right of innocent passage within internal waters.
Unless specific provisions exist to the contrary, access to internal waters may occur only with the consent of the coastal state, with the exception of port access in cases of force majeure, which is a right that may be invoked by the captain of the vessel only in instances of imminent danger to the vessel or its crew. Other activities within internal waters, including research, must be preceded by a request for coastal state consent. Entry into internal waters without the consent of the coastal state (as in the case of a drifting buoy) is subject to coastal state jurisdiction, including regulations determining liability for harm done.
2.2 Territorial Sea. The territorial sea is delimited either from base points on the land mass (normally at the low-water line along the coast) or from baselines connecting such points in accordance with international law. The coastal state enjoys sovereignty and jurisdiction over the territorial sea subject to the right of innocent passage for foreign vessels. Research activities cannot be considered "innocent" in this sense, and the consent of the coastal state is therefore required for research in all cases. Except in the case of straits used for international navigation, it is possible for the coastal state to suspend even the right of innocent passage in extraordinary circumstances. A submarine may pass innocently through the territorial sea only when on the surface and displaying its flag; submerged passage requires coastal state consent. The maximum breadth of the territorial sea allowed under international law as reflected in the LOS Convention is twelve nautical miles.
2.3 Contiguous Zone. The coastal state has limited authority in the contiguous zone for the purpose of enforcing its customs, fiscal, immigration, and sanitary laws and regulations. Research activities in the contiguous zone are governed by the regime of the exclusive economic zone as described below. The contiguous zone may not extend beyond twenty-four nautical miles from the baseline from which the territorial sea is measured.
2.4 Exclusive Economic Zone. The exclusive economic zone is a relatively new concept in international law (see Appendix A). The coastal state has jurisdiction over marine scientific research within the exclusive economic zone, as well as sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or nonliving, of the waters superjacent to the seabed and of the seabed and its subsoil, and over other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds. Jurisdiction is also provided over establishment and use of artificial islands, installations, and structures and over the protection and preservation of the marine environment. The exclusive economic zone extends to a maximum breadth of 200 nautical miles from the baseline from which the territorial sea is measured.
The U.S. has accepted the concept of the exclusive economic zone and the concomitant jurisdiction of the coastal state over marine scientific research exercised therein. Specifically, the Presidential Proclamation of March 10, 1983, stated that the U.S. government would recognize foreign claims to jurisdiction over marine scientific research so long as such jurisdiction is exercised "reasonably" and "in a manner consistent with international law." Accordingly, persons conducting research will normally be required to obtain the consent of foreign coastal states when conducting scientific research within the 200-nautical-mile exclusive economic zone. (The United States, however, has decided not to exercise such control over marine scientific research within its own exclusive economic zone.)
Since coastal states may exercise jurisdiction over marine scientific research within 200 nautical miles of the baseline from which the territorial sea is measured, it is possible that consent for research more than 200 n.m. from land may be required when the straight baseline method has been used in accordance with international law to close bays or in areas where the coast is heavily indented. This may also be the case with island nations claiming archipelagic status (see below). Not all states use the straight baseline method for delimiting their coastlines, however. The Department of State monitors such claims and publishes claims in its "Limits in the Seas" series which is available at many oceanographic institutions. It is especially important to consult the Department of State when there is any doubt about the location of maritime boundaries (see Section 2.8 below).
2.5 Continental Shelf. The consent of the coastal state is required for marine scientific research on the continental shelf. In areas where the continental shelf extends beyond the exclusive economic zone, states may publicly identify areas of the continental shelf in which their consent is required where resource-related activities are in progress or will occur; such consent may not be withheld beyond the exclusive economic zone for research in areas not so identified. Advice should be sought from the Department of State when planning research concerning the continental shelf beyond the exclusive economic zone.
Investigators are cautioned that (a) the legal definition of the continental shelf contained in the LOS Convention bears little resemblance to any geomorphological definition of the shelf with which scientists are likely to be familiar; that (b) perhaps significantly, the U.S. government has neither accepted nor rejected the definition of the shelf contained in the LOS Convention; and that (c) the use of the term "on" the shelf leaves open to debate the need for consent for studies of the shelf beyond the EEZ which do not entail actual physical contact with the shelf (as in the case of seismic profiling).
2.6 High Seas. There is complete freedom of access to the area of waters beyond the exclusive economic zone known as the high seas, subject to the duty to respect the rights of others under international law. Research may be undertaken in the water column or on the deep seabed as a legitimate exercise of a high seas freedom.
2.7 Archipelagic Waters. States consisting entirely of one or more midoceanic archipelagos (Indonesia and the Philippines are the most notable examples) may avail themselves of a formula in the LOS Convention by which the outermost islands can be joined by baselines from which the territorial sea is measured. The area within those baselines is known as archipelagic waters, in which the state exercises sovereignty over air space, seabed, subsoil, and resources, and in which the right of innocent passage may be suspended only temporarily in specified areas and then only if essential for the protection of the security of the archipelagic state. Archipelagic status does not preclude the delimitation of internal waters.
Further, the archipelagic state may identify specific sea-lanes for the regulation of navigation to which the regime of archipelagic sea-lanes passage applies. If the coastal state has not designated archipelagic sea-lanes in accordance with international law, then vessels of all states may pass through the archipelago via routes normally used for international navigation. Research within archipelagic waters requires the consent of the archipelagic state.
2.8 Maritime Boundaries. The question frequently arises as to what country's consent is required when research is proposed near the boundaries of two (or, in some cases, more) adjacent states or where states face each other across a body of water less than 400 n.m. wide. Coastal state jurisdiction can readily be determined when a maritime boundary has been agreed between adjacent or opposite states. However, the overwhelming majority of the world's boundaries have yet to be negotiated, resulting in a situation of less than optimal clarity. If there is any question as to the effect of a maritime boundary (or absence thereof) on a research project, the State Department should be consulted immediately and will often recommend that a request be submitted to the states involved with greater than normal lead time. Under no circumstances should such a project proceed without State Department advice.
In the event that a boundary is not agreed upon, an attempt should be made to ascertain whether each of the states involved has established a maritime boundary claim in the area. If the research falls outside the area of conflicting claims, consent should be sought only from the country in whose undisputed waters that research will occur. If part of the research is likely to occur in the disputed zone, the Department of State should be consulted immediately to determine an appropriate course of action. Coastal states usually are very sensitive about any actions which might prejudice their claims, and a clearance request submitted to one party to a dispute which is not submitted to the other(s) can be prejudicial to the claim(s) of the latter. This is an area in which persons conducting research should not attempt to proceed without advice from the State Department.
In the unusual event that no specific boundary claims have been made between adjacent or opposite states, an equidistance line between the two states usually will not prejudice the juridical positions of the states involved. It is recommended that the Department of State be consulted regarding the use of an acceptable equidistance line.
2.9 Straits. Ships and aircraft enjoy special rights in straits which are used for international navigation between one part of the high seas or exclusive economic zone and another part of the high seas or an exclusive economic zone. Such rights are included in the regime of transit passage. Transit passage applies solely to continuous and expeditious transit of the strait but does not preclude passage through the strait for the purpose of entering, leaving, or returning from a state bordering the strait, subject to the conditions of entry to that state. Ships and aircraft have special duties in conjunction with these rights and may not carry out research or survey activities without prior authorization of the states bordering straits. The procedures for obtaining access to conduct research are those of the territorial sea as described above for all straits less than twenty-four nautical miles in breadth.
2.10 Antarctic Research. Complete freedom of access for scientific research south of 60 degrees south latitude is provided by the Antarctic Treaty of 1959. The Antarctic Treaty requires, however, that advance notice of cruises and a brief postcruise report be provided through diplomatic channels. These notices and reports are compiled by NSF's Division of Polar Programs for transmittal through the Department of State. The treaty further requires that results of all research in the treaty area be shared among all treaty parties. The principal mechanism for international dissemination of the results of U.S. Antarctic research is the Antarctic Journal published by the Division of Polar Programs of the U.S. National Science Foundation.