For better or for worse, the process of negotiation at the Third United Nations Conference on the Law of the Sea has defined the common legal conception of many of the world's nations toward marine scientific research, and for this reason alone it is useful to review the major provisions of the LOS Convention which affect marine science. The U.S. government has rejected the LOS Convention as a whole, principally because of objections to the provisions which govern the exploitation of mineral resources of the deep seabed. That rejection notwithstanding, the present administration has accepted most of the nonseabed provisions of the LOS Convention as being generally reflective of customary international law, including those provisions governing the conduct of marine scientific research. Note that the LOS Convention defines the maximum limits of jurisdiction which states may exercise (both geographically and in terms of the type of authority which may be used). There is no rule of international law which prevents states from establishing less stringent jurisdiction over marine scientific research or other activities should they, in the exercise of their sovereignty, choose to do so. Several states, including the U.S., have chosen to impose jurisdiction over marine scientific research in ways that are less restrictive than provided for under the LOS Convention.
Under the LOS Convention, marine scientific research is conducted exclusively for peaceful purposes (apparently excluding certain activities of a direct military nature from the LOS research regime), and research activities must not unjustifiably interfere with other legitimate uses of the sea. Although the LOS Convention purports to create favorable conditions for the conduct of marine scientific research, the coastal state has the right to require consent for all marine scientific research within the 200-mile exclusive economic zone, and the constraints on coastal state discretion are few indeed. Accordingly, states which wish to encourage international cooperation in marine science are likely to respond favorably and in a timely fashion to requests for such consent, while states which find reason to hamper the conduct of research have no lack of tools to do so in the LOS Convention. The LOS Convention has provided no mechanism by which a decision to delay, disrupt. or disapprove a request for clearance can be questioned or independently reviewed.
The LOS Convention calls upon states to grant consent for marine
scientific research and to establish rules and procedures ensuring
that such consent will not be delayed or denied unreasonably.
Specific justification for denial of consent exists if the research:
(a) is of direct significance for the exploration and exploitation
of natural resources, whether living or nonliving;
(b) involves drilling into the continental shelf, the use of explosives
or the introduction of harmful substances into the marine environment;
(c) involves the construction, operation, or use of artificial
islands, installations, and structures;
(d) contains information submitted in the clearance request regarding
the nature and objectives of the project which is inaccurate or
if the researching state (or international organization which
may have submitted the clearance request) has outstanding obligations
to the coastal state from a prior research project.
The LOS Convention provides that requests for coastal state consent
be submitted through official channels (see "Diplomatic Channels"
above, although the Department of State may choose to designate
an alternative "official" channel within the U.S. government)
not less than six months in advance of the expected starting date
of the marine scientific research project. The description of
research must include:
(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 vessel(s), 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.
Further, the individual in charge of the research must comply
with the following conditions:
(a) ensure the right of the coastal state, if it so desires, to
participate or be represented in the marine scientific research
project, especially on board research vessels or other craft of
scientific research installations, when practicable, without payment
of any remuneration to the scientists of the coastal state and
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) undertake to provide access for the coastal state, at its
request, to all data and samples derived from the marine scientific
research 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 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 scientific research installations
or equipment once the research is completed.
If the above requirements are met, the consent of the coastal
state is implied unless within four months after the request is
submitted:
(a) the coastal state has specifically withheld consent as provided
for above; or
(b) the information regarding the nature or objectives of the
project does not conform to the manifestly evident facts; or
(c) the coastal state requires certain types of supplementary
information; or
(d) outstanding obligations exist with respect to a previous marine
scientific research project carried out by the researching state
(or international organization which may have submitted the clearance
request).
State Practice. Again, it is important to emphasize that even signatories of the LOS Convention may choose not to avail themselves of the complicated procedures provided for above. The fact that the United States has not signed the LOS Convention may prompt some states to require U.S. scientists to meet all of the obligations imposed, but to deny to the U.S. the few benefits which the treaty offers (such as the four-month implied consent procedure).