As the provisions of the LOS Convention on the marine scientific research
mainly deal with the rights and obligations between the coastal State and
the researching State and thus do not deal with the legal relations between
the two coastal States in the disputed areas, these provisions are not of
direct relevance in considering the question whether coastal State A can
conduct marine scientific research in the Disputed Areas without consent
from the other coastal State B.
It is to be noted that, as will be seen in Chapter 4, the Chinese exploration
activities in the East China Sea where there is no boundary sparked
off diplomatic rows with Japan as it regarded these exploration activities
by the Chinese vessels on the Japanese side of the hypothetical equidistance
line as an infringement on its rights. In this situation, the question
necessarily arises as to whether all scientific research or explorations by a
coastal State are not permitted at all in the disputed areas without consent
from the other coastal State?
Interestingly, this question was raised in the Aegean Sea Continental
Shelf Case. In this case, Greece requested the International Court of Justice
to direct the two coastal States to refrain from all exploration activities or
any scientific research with respect to the continental shelf areas in dispute,
unless with the consent of each other pending the final judgment of the
Court. Greece argued that all unilateral exploration activities and scientific
research in the disputed area are not allowed because these might
prejudice the execution of any judicial decision.
If we read Greece’s argument carefully we can find that Greece tacitly
presupposes a genuine coastal State which has the sole exclusive sovereign
rights in the disputed area, when it argues that “the exclusivity of knowledge”
of the coastal State on its continental shelf should be protected. Along
this line of reasoning, Greece regarded any damages to exclusivity of knowledge
as irreparable damage to the rights of the coastal State, which should be protected by the ICJ until it declared that Greece is the coastal State, i.e., the genuine coastal State. Thus, Greece argued that, “Turkey’s grants
of exploration licenses and exploration activities must tend to anticipate the
judgement of the Court, and that breach of the right of a coastal State to
exclusivity of knowledge of its continental shelf constitute irreparable prejudice
(emphasis added)”. Greece went on to argue that:
. . . Turkey’s seismic exploration threatens in particular to destroy the
exclusivity of the rights claimed by Greece to acquire information concerning
the availability, extent and location of the natural resources of
the areas . . .
However, the Court did not agree on the concept of “exclusivity of knowledge”
of the genuine coastal State, but looked into the physical nature of
the activities undertaken by the other possible coastal State. For the Court,
seismic exploration was tolerable in the disputed area because it is merely
“of the transitory character” which does not involve “any risk of physical
damage to the seabed or subsoil or to their natural resources”. The Court
held that:
the seismic exploration undertaken by Turkey, of which Greece complains,
is carried out by a vessel traversing the surface of the high seas
and causing small explosions to occur at intervals under water; whereas
the purpose of these explosion is to send waves through the seabed so as
to obtain information regarding the geophysical structure of the earth
beneath it; whereas no complaint has been that this form of seismic exploration
involves any risk of physical damage to the seabed or to their natural
resources; whereas the continental seismic exploration activities
undertaken by Turkey are all of the transitory character just described,
and do not involve the establishment of installations on or above the
seabed of the continental shelf; and whereas no suggestion has been made
that Turkey has embarked upon any operations involving the actual appropriation
or other use of the natural resources of the areas of the continental
shelf which are in dispute . . .
With regard to the alleged damage to the exclusivity of rights to the information
on the natural resources, the Court held that:
Whereas, in the present instance, the alleged breach by Turkey of the
exclusivity of the right claimed by Greece to acquire information concerning
the natural resources of area of continental shelf, if it were established,
is one that might be capable of reparation by appropriate means,
and whereas it follows that the Court is unable to find in that alleged breach of Greece’s rights such a risk of irreparable prejudice to rights in
issue . . .
From the passage above, we find that the Court looked into the nature of
the exploration, to decide whether any unilateral exploration by one coastal
State is prejudicial to the rights of the other coastal State. If Turkey had
undertaken any actual drilling into the disputed continental shelf or actual
exploitation of oil or gas in the disputed area then the decision of the ICJ
would have been different. Therefore, it can be said that a coastal State can
conduct marine scientific research in the disputed area without consent from
the other coastal State as long as the scientific research is of the “transitory
character” which does not involve “any risk of physical damage to the
seabed or subsoil or to their natural resources”.
As the ICJ looked into the nature of marine scientific research and
made a distinction between the transitory character and non-transitory character
of the exploration, it might be appropriate to see whether there is such
a classification of marine scientific research in the provisions of the Geneva
Convention on the continental shelf and the LOS Convention.
We can see that the Geneva Convention makes a distinction between
“purely scientific research into the physical or biological characteristics of
the continental shelf” and other research and it provides that “the coastal
State shall not normally withhold its consent” with regard to such “purely
scientific research”. Although the Geneva Convention distinguished between
“purely scientific research” and other scientific research, it did not indicate
what this other research, which is not purely scientific, is. The other scientific
research which is not purely scientific appears to be that research
conducted for commercial or military purpose and thus can be referred to
as applied scientific research.
The reason why the Geneva Convention made a distinction between
purely scientific research and other research, appears to be that there was
a general view that the enhancement of knowledge about the ocean is for
the benefit of mankind as a whole. When François, the Special Rapporteur,
reported on the issue of scientific research in the eighth session of the
International Law Commission (ILC) in 1956, he introduced the resolution
of the International Council of Scientific Union (ICSU) on this issue, which
asserts that “fundamental research by any nation carried out with the intention
of open publication is in the interests of all” and the draft articles
should be amended so as to ensure “such fundamental research at sea may
proceed without vexatious obstruction”. Referring to the resolution of the
ICSU, the Special Repporteur stated his opinion that the coastal State will
not have the right to prohibit such purely scientific research.
In the resolution by the ICSU, we can see an illustration of purely scientific
research. In the resolution, this is “fundamental research in the geophysics,
submarine geology, and marine biology of the sea-bed and subsoil
of the continental shelf ”. Alfred H.A. Soons, having examined the drafting
history of the provisions, pointed out that:
The reference to purely scientific research was intended to make it clear
that the provision was not intended to cover exploration activities, i.e.,
the collection of data with a view to exploitation. Purely scientific research
can yield results which are useful from the point of view of exploitation,
but the research is conducted without paying attention to such practical
applications of the results. The reference to “physical or biological characteristics
of the continental shelf” was also intended to emphasise that
the research covered by the provisions excludes the collection of data
with a view of exploitation.
Let us turn to the LOS Convention to see whether there is a similar distinction
in the marine scientific research. The LOS Convention adopts basically
the same regime on the regulation of marine scientific research on the
continental shelf and in the exclusive economic zone as that of the Geneva
Convention. Under the LOS Convention, all scientific research on the continental
shelf and in the exclusive zone should be conducted with the consent
of the coastal State. The LOS Convention, like the Geneva Convention,
makes a distinction between two different kinds of marine scientific research;
one which is carried out “exclusively for peaceful purposes and in order to
increase scientific knowledge of the marine environment for the benefits of
all mankind” and the other scientific research. The discretion of the coastal
States with regard to the former type of marine scientific research is restricted
in the sense that the coastal States shall, in normal circumstances, grant
consent for marine scientific research of that type, whereas the coastal States
have discretion to withhold its consent with regard to the latter type of the
marine scientific research. Here we can associate the former type of the
marine scientific research under the LOS Convention with the purely scientific
research in the Geneva Convention.
The LOS Convention, unlike the Geneva Convention, elaborates what
the other scientific researches are, for which the coastal States can withhold
their consent. These other scientific researches are those which (a) are
of direct significance for the exploration and exploitation of natural resources,
(b) involve drilling into the continental shelf, the use of explosives or the
introduction of harmful substances into the marine environment, and (c)
involve the construction, operation or use of artificial islands, installations
and structures.
Having thus examined the provisions of the Geneva Convention and
the LOS Convention regarding the distinction between purely scientific
research and other research in the two conventions, an important question
arises here as to whether the distinction between pure scientific research
and other research adopted in the two conventions, have any relationship
with the distinction between the marine scientific research of transitional
character and of non-transitional character adopted by the ICJ in the Aegean
Sea Continental Shelf Case. If there is some relationship between the two
classifications, the provisions of Article 245 of the LOS Convention can also
be illustrative of what research activities by a coastal State A in the disputed
areas are prohibited without consent from the other coastal State B.
In fact, we can find a significant overlap between two ways of classification
by the ICJ and the LOS Convention. We can see that paragraph 5
of Article 246 of the LOS Convention lists several forms of research for
which the coastal State has discretion to withhold its consent. Furthermore,
we find there in the paragraph the very illustrations of explorations of a
non-transitory character which were mentioned by the ICJ in the Aegean
Sea Continental Shelf Case. Note that according to the ICJ, scientific
research is not of a transitory character if the research involves either (i)
“any risk of physical damage to the seabed or subsoil or to their natural
resources”, (ii) “the establishment on or above the seabed of the continental
shelf, or (iii) “the actual appropriation or other use of the natural resources
of the areas of the continental shelf which are in dispute”. Note that these
kinds of marine scientific research are provided for in paragraph 5 of Article
246 of the LOS Convention, for which the coastal State can withhold its
consent.
Here, we can see that the two concepts of the applied scientific research
in the LOS Convention and “exploration of transitory character” appear to
be almost the same in reality.200 Thus it can be presumed that a coastal State
would be ordered by the ICJ to cease the marine scientific research if it
involved the activities provided in paragraph 5 of Article 246 of the LOS
Convention in the disputed areas without consent from the other coastal
State.
By the same token, it can be said that the coastal State would not be
ordered to cease the purely scientific research conducted “exclusively for
peaceful purposes and in order to increase scientific knowledge of the marine
environment for the benefits of all mankind”, which does not involve any
of the activities provided for in paragraph 5 of Article 246 of the LOS
Convention.
However, it is not to be forgotten that even if one contending coastal
State can carry out some form of research activity in the disputed area, it is nevertheless expected to follow other rules applicable to scientific research, such as general principles for the conduct of marine scientific research provided
in Article 240 or the duty to publish and disseminate the information
and knowledge acquired from the research as provided in Article 244 of
the LOS Convention.
From the examination above, we can reasonably infer that some types
of marine scientific research can be conducted by a coastal State in the disputed
areas without consent from the other coastal State. However, the problem
is that there might be a situation where the coastal States have different
views on which research is permissible in the disputed areas without the
consent from the other contending coastal State. Or it might be the case
where one of the coastal States argues that any marine scientific research
in disputed areas without its permission is prejudicial to its rights. Therefore,
we can see that there is a clear need for neighbouring littoral States to talk
in order to have a common understanding as to which research can be conducted
in the disputed areas without the consent from the other coastal State
and to enter into arrangements for marine scientific research in the disputed
areas. It can be seen in Chapter 3 that there are several instances where
arrangements are in place in the disputed areas. These are the joint regime
area between Colombia and Jamaica, the common zone between Sudan and
Saudi Arabia and the common scientific and fishing zone between the
Dominican Republic and Colombia.