Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research

This paper reviews differences and overlaps between hydrographic surveying and marine scientific research in the exclusive economic zone (EEZ), including the concept of military surveying. It concludes that recent trends with technology, the utility of hydrographic data and State practice suggest that hydrographic surveying in the EEZ should be under the jurisdiction of the coastal State. Paradoxically arguments for military surveys in the EEZ being outside coastal State jurisdiction appear stronger than those for hydrographic surveying. The paper offers some guidelines related to the conduct of hydrographic surveying in the EEZ.     

Introduction: military and intelligence gathering activities in the exclusive economic zones: consensus and disagreement II

Maritime issues have risen to the forefront of current security concerns. In particular, military and intelligence gathering activities in foreign exclusive economic zones (EEZ) remain controversial. Exacerbating factors include advancing military and intelligence technology, a growing dialectic between coastal States and maritime powers, and new threats like terrorism and weapons of mass destruction. The Honolulu Meeting was part of a Dialogue series on these issues. Topics covered included a summary of the Tokyo Meeting; recent incidents and developments; different perspectives; the proliferation security initiative; implications for the EEZ regime; key terms: range of interpretation; hydrographic surveys and scientific research: differences, overlaps and implications; draft guidelines for military and intelligence gathering in the EEZ; means and manner of implementation and enforcement of any agreed rules; and conclusions and the way forward.     

A Korean perspective

The adoption of the EEZ in the 1982 UNCLOS represents the culmination of an effort by some parts of the international community to separate “jurisdiction” over the natural resources in offshore waters from the “sovereignty” manifest in the territorial sea. It is clear that the EEZ is a zone that is neither territorial waters nor wholly high-seas. It is also a zone in which competencies are balanced between the need of coastal States to have sufficient authority to exploit and manage their economic resources and the need of all other States to retain high-seas navigation and communications freedoms and uses related to such freedoms. From South Korea's perspective, the EEZ is a sui generic zone in which military and intelligence activities are limited or not allowed without the consent of the coastal State. This is equally applicable in peace and war. Although several States stress that Article 58 of the 1982 UNCLOS permits such activities, increasing EW and IW capabilities may result in reinterpretation of certain provisions of the 1982 UNCLOS.     

The exclusive economic zone : State claims and the LOS convention

The rapid acceptance of the exclusive economic (EEZ) concept belies the broad differences among State claims beyond 12 nautical miles, and the wide gulf between State practice and the United Nations Convention on the Law of the Sea (LOS Convention). This paper first examines the areas of contention between State practice and the LOS Convention. These differences are characterized and the author concludes that the EEZ regime within the Convention does not address the specific individual and regional needs of States that have resulted in the wide discrepancy among State claims. The author suggests a global authority under which the jurisdictional line would be redrawn along the practical level of coastal State to vessel, rather than the political plane of coastal State to flag State.     

Draft guidelines for military and intelligence gathering activities in the EEZ and their means and manner of implementation and enforcement

Specific voluntary guidelines are proposed for military and intelligence gathering activities in the EEZ. Views on the guidelines range from strong reservations regarding any restrictions on these activities to support for some restrictions. There is general support for the effort to promote mutual understanding and agreement on the rights and obligations of the maritime powers which do not want any rules and coastal States that want some predictability and protection against intimidation. The challenge is to find a practical way of handling these issues. Suggestions are provided regarding requisite specific assurances and the process for implementing and enforcing any such guidelines. State consent and State practice will play a significant role in this process.     

Report of the Tokyo meeting and progress to date

Military and intelligence gathering activities will likely become more intensive, intrusive, controversial and dangerous. Regarding the regime covering these activities, there is general agreement that the exercise of the freedom of navigation and overflight in and above Exclusive Economic Zones (EEZs) should not interfere with the rights of the coastal State in the EEZ. But there is disagreement regarding interpretations of relevant 1982 UNCLOS provisions, the means to resolve the disagreements, or if there is even a need to do so. Increased dialogue between maritime powers and coastal States is necessary to reach a mutual understanding of key terms with a goal of developing some agreed voluntary guidelines for such activities and the means and manner of implementing them.     

Conclusions,regime building and the way forward

Military intelligence gathering activities in the EEZs are becoming more controversial and more dangerous due to increasing and changing demands for technical intelligence; robust weapons and electronic warfare; and widespread development of information warfare capabilities. There is agreement that freedom of navigation and overflight should not interfere with the coastal state's right to protect and manage its EEZ resources and environment. But there is considerable disagreement on the meaning of some key 1982 UNCLOS language, the means of resolving these disagreements, or whether there is a need to do so. Each alternative approach to resolving these disagreements has its advantages and disadvantages. Needed now is a common understanding of terminology and guidelines for military and intelligence gathering activities in the EEZ. What is being proposed is regime building, a process which has its own conditions for, and constraints to, success. Foremost among the conditions for success is the recognition of the necessity of co-operation, and agreement on its form such as the SUA Convention, or ocean management, which may have a spillover effect to enhanced multilateral security. Given the constraints, a loose blueprint for the way forward can be constructed in which the continuity of this informal dialogue plays a major role. Specific next steps include fact finding regarding previous incidents; production of a glossary of definitions of critical terms; categorization of activities in the EEZ as to which are allowed and not allowed; the manner of implementation of coastal states’ rights; the means and manner of enforcement of any agreed rules; and specific suggestions for policy.     

Bio-logging of marine migratory species in the law of the sea

The use of advanced and emerging remote data-collection technologies, and in particular bio-logging of marine migratory species, raises fundamental questions about the scope of authority of coastal states to regulate marine scientific research in the waters under their jurisdiction. Bio-logging involves the attachment of devices to marine animals that collect and transmit data about their movements and aspects of the local marine environment, and is now routinely used by marine scientists to support conservation programs and augment oceanographic data collection. Tagged marine life, including seabirds, marine mammals, sea turtles and pelagic fishes, may interact unpredictably with the territorial seas and exclusive economic zones (EEZs) of numerous coastal states. This article explores the legal implications of bio-logging within the legal regime of marine scientific research in the law of the sea. Although bio-logging is a form of marine scientific research, when it is initiated outside a coastal state׳s jurisdiction it does not later fall within it, even if the tagged animals subsequently enters a coastal state׳s territorial sea or EEZ.     

Attainment of ecosystem based governance in European waters—A State property rights regime approach for Ireland

On Ireland's continental shelf, as well as within its Exclusive Economic Zone (EEZ), there are significant biodiversity hotspots including those associated with Cold Water Corals (CWC). Some of these ecosystems enjoy little or no actual protection and are subject to the effects of open access. Sectorally driven initiatives, a recalcitrant attitude to environmental law and inadequate governance, have added to the conditions that have facilitated years of damage by fishers and other actors from many States. A review of the current governance regime, influenced primarily by the Common Fisheries Policy (CFP), is presented. Failings of this regime are highlighted by the destruction of some biodiversity hotspots associated with vulnerable marine ecosystems (VMEs), an externality primarily arising from the effects of deepwater fishing. While exploring some of the principles relating to the institution of property rights, this paper makes a link between property rights, the public trust doctrine and sovereign rights. The paper suggests that such biodiversity systems are the property of citizens of the individual States in whose area of jurisdiction they occur. The paper argues for an Irish State property rights regime as part of an ecosystem approach within a nested institutional architecture. This has important implications for the governance of biodiversity such as that associated with CWC and for the development of an Irish National Oceans Policy.     

The exclusive economic zone: some perspectives

A brief presentation is made of the concept of the Exclusive Economic Zone (EEZ) adopted by the United Nations Conference on the Law of the Sea, and included as a major feature of the Law of the Sea. The potential of the EEZ for the small developing island countries is discussed, together with the possibility of using the EEZ to achieve a larger measure of equity among nations than the prevailing one. The role of the EEZ in obtaining improved ocean governance, more sustainable management of the marine resources and control of marine pollution is considered. The need for building an indigenous capacity to deal with the marine resources and issues is identified and the possibility of achieving this through regional cooperation. The possibilities inherent in the EEZ regime for oceanic islands are discussed, with focus on the Indian Ocean, the Mediterranean and the central Atlantic Ocean.     

The disappearing right to navigational freedom in the exclusive economic zone

Navigational freedoms have been a central part of the law of the sea for hundreds of years, but significant restrictions have been imposed recently upon these freedoms. Fishing vessels are subject to the most restraints and, to protect their fish catch, must now give notice whenever they travel through the exclusive economic zone (EEZ) of another country. Oil tankers, especially those with single hulls are also subject to a variety of restraints, and any ship with a dangerous cargo must conform to international, regional, and national regulations. Ships carrying ultrahazardous nuclear cargoes have been told by many countries to avoid their EEZs, and these ships have in fact picked routes designed to avoid most EEZs. Security concerns have increased dramatically during the past 2 years, and it has become almost commonplace for the major maritime and military powers to assert the right to stop and board merchant vessels to look for suspect cargoes in all parts of the oceans. Even military vessels, which have immunity from seizure, must nonetheless respect the many rules that have been established to protect the marine environment and the security of coastal populations. A new norm of customary international law appears to have emerged that allows coastal states to regulate navigation through their EEZ based on the nature of the ship and its cargo.It appears that it is no longer accurate to say that the freedom of navigation exists in the exclusive economic zone of other countries to the same extent that it exists on the high seas. The balance between navigation and other national interests continues to develop, and navigational freedoms appear to be disappearing during this evolutionary process.     

Guidelines for navigation and overflight in the exclusive economic zone

Several significant international incidents in Asian exclusive economic zones (EEZs) have underscored the ambiguity and lack of agreement regarding the regime governing foreign military activities in coastal States’ EEZs. A group of senior officials and analysts participated in their personal capacities in a dialogue from 2002–2005 that discussed the issues with a view to improving mutual understanding of the regime and finding areas of agreement. The Tokyo meeting in September 2005 reached consensus on some voluntary, non-binding guidelines that are presented here. The guidelines are based selectively on the 1982 UNCLOS, State practice and emerging ‘soft’ law, and attempt to balance the interests of coastal States and user States. It is hoped that they may serve as the basis for discussion and eventual agreements between governments.     

Conclusions and the way forward

Military and intelligence gathering activities in the EEZs will likely become more intensive and intrusive. They will also become more controversial because there is disagreement regarding the regime governing such activities in the EEZ. Dialogue leading to agreed voluntary guidelines for these activities must continue.     

加拿大海洋-海岸带地质调查与"海底资源填图计划"

简要介绍了加拿大海洋－海岸带地质调查的推动力和基本经验，以及即将启动的“海底资源填图计划”（SeaMap)。加拿大海洋－海岸带地质调查强调多波束测深技术的应用、多学科的协作和数据库建设，SeaMap将对整个加拿大专署经济区进行综合填图。     

Rights based fishing on the high seas: Is it possible?

The high seas fisheries are troubled by overcapacity and lax enforcement of management rules. The idea has emerged that these problems could be dealt with by property rights solutions such as ITQs. Such management tools only emerged after the 200-mile EEZ was established. This made it possible to apply the sovereign state's legislative, enforcement and judiciary apparatus to regulate fisheries. It is argued that without the EEZ such solutions would have been unlikely to emerge, and that a further extension of the EEZ is necessary to apply rights-based regulations to high seas fisheries. The current management regime of high seas fisheries lacks the necessary enforcement apparatus, which makes it necessary to apply trade sanctions, port measures and blacklisting to support regulations of high seas fisheries. It is argued that such measures are likely to be the second best, compared to further extending coastal state jurisdiction. Finally a bioeconomic model is applied to analyze potential gains from cooperation in high seas fisheries.     

Sovereign rights and responsibilities: Applying public trust principles to the management of EEZ space and resources

Since the United States proclaimed its 200 nautical mile Exclusive Economic Zone in 1983, US agencies have given little attention to the need to develop effective management principles and strategies for the resources of this vast ocean area. Instead, they have relied upon existing programs and authorities to oversee the development of ocean energy and fisheries. This approach has been criticized by marine policy analysts because it perpetuates the existing, fragmented single-sector ocean regime characterized by inconsistent policies and endemic use conflicts.This paper proposes the adoption of certain principles deriving from the common law public trust doctrine in the management of EEZ resources and space. Historically, the public trust doctrine protected the public's rights and interests in nearshore resources and uses (commerce, navigation, and fishing). These traditional public rights were held by the crown or the government in trust for the people and could not be readily destroyed even though shorelands and coastal waters subject to the public trust might be conveyed into private ownership. In modern times the doctrine has been expanded in the United States to protect public rights in other uses and activities (e.g. conservation, scenic and ecological values, and preservation of open space and habitat) and extended geographically to apply to inland rivers, streams, and lakes.The public trust doctrine already applies in many states to the space, resources, and uses of the territorial sea. Because of the overlap of EEZ and territorial sea resources and uses, this paper considers the advantages of applying public trust principles and concepts to managing the EEZ. These principles include the need to preserve trust lands, waters, and resources for public use and benefit. The doctrine also provides a basis for distinguishing between, and ranking, public uses of trust resources, and imposes both substantive and procedural standards against which the conduct of the govermental trustees of trust, resources may be measured.The authors contrast the public trust doctrine with the ‘public trust’ deriving from the property clause of the US Constitution, and conclude that the broad discretion afforded federal officals under the latter is inconsistent with effective environmental management. Finally, the authors recommend a set of ‘presumptions’ derived from public trust principles that federal courts might follow to resolve serious EEZ space and resource-use conflicts.     

Experimental activities that intentionally perturb the marine environment: Implications for the marine environmental protection and marine scientific research provisions of the 1982 United Nations Convention on the Law of the Sea

The global community's ability to assess the environmental effects of marine scientific research (MSR) as required by the 1982 United Nations Convention on the Law of the Sea's (UNCLOS) marine environment provisions (MEP) is limited, as shown by experimental activities that intentionally manipulate the marine environment. Such work enhances knowledge of the ocean, but it may also have significant environmental effects. This growing use of the ocean as a laboratory has global scientific, environmental, legal and policy implications. Examined here is the relationship between the MSR and the MEP provisions of UNCLOS. International, science-driven guidelines are proposed.     

我国海洋环境地质

我国海洋地质环境研究始于20世纪50至60年代,80至90年代是我国海洋环境地质学形成和快速发展时期。灾害地质是海洋环境地质研究的先行领域,全球变化研究也取得长足进展。全球变化、区域海洋环境地质调查、滨海城市地质、沿海地下水环境、海洋灾害地质、海底不稳定性、滨海湿地、人类活动对海洋地质环境影响等,都是今后我国海洋环境地质研究的重要方向。我国海岸带地质环境,具有构造活动性强、入海泥沙大、多风暴潮、人工环境非常突出等特征。海岸带基本环境问题包括地质资源利用、人为工程环境、流域环境变化、海平面上升等对海岸带环境影响4个方面。黄河、长江、珠江三大三角洲,除共性问题外,还存在各自独特的环境地质问题。海底不稳定性和灾害地质因素是目前近海环境地质学研究的主要课题,大抵可分为构造、斜坡、底型和结构4种不稳定性。中国近海有六大类约40种灾害地质因素。根据地质环境特征,中国近海可分为17个环境地质区。     

Fisheries development in Vietnam: A case study in the exclusive economic zone

Pursuant to statement issued by the Government of Vietnam on 12 May 1977, on the territorial sea, the contiguous zone, the exclusive economic zone (EEZ) and the continental shelf of Vietnam, and according to the provisions of the LOS Convention, the EEZ of Vietnam extends principally up to 200 NM from the baseline, and the area of EEZ amounts to about one million square km including the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands [The declaration of the Government of Vietnam on the territorial sea, contiguous zone, exclusive economic zone and continental shelf, Hanoi, 1977]. The establishment of EEZ has significantly changed circumstances for the fisheries sector in Vietnam.Recently, even though the adaptation of new techniques and technologies to the fisheries sector has been somewhat successful and resulted in the limitation of effective exploitation opportunities, sea fishing is still very important to the economy of Vietnam. In fact, fisheries development in Vietnam has the following important objectives, whether pursued in marine or fresh water: foreign exchange earnings; protein for local diets and feeds for live stock; provision of employment. However, a matter of concern is that the outdate fishing methods and uncontrolled fishing are damaging the marine environment and living resources. These problems have been recognized and courses of action have been formulated. A prerequisite condition for resolving this issue is to have a mechanism for synchronized policies which are guaranteed by appropriate macro management. The main purposes of this paper are a review of some aspects of fisheries sector development and management in Vietnam in the light of the new regime of the EEZ, represented in the LOS Convention. An important objective of the paper is the emphasis on the problem of policy-relevant research for fisheries sector management in the future.     

浙江省海洋公益服务的重大事件

浙江省海洋开发历史悠久 ,长期以来为支持和保障开发利用海洋和海岸带资源 ,浙江省在海洋公益服务方面做了许多工作。例如海塘建设 ,海岸带、海涂、海岛资源调查 ,海洋功能区划 ,海洋渔业调查与区划 ,海洋能资源区划 ,海洋环境和灾害预报 ,海洋地质矿产勘探 ,海洋测量 ,海洋遥感等。这些重大历史事件表明 ,合理利用海洋、海岸带资源 ,保护海洋生态环境 ,实现可持续发展 ,是推动浙江省海洋经济发展的重要环节。