Posted by: Andi Arsana | October 19, 2004

MARINE SCIENTIFIC RESEARCH: A LEGAL AND TECHNOLOGICAL PERSPECTIVE

I Made Andi Arsana [1]

Abstrak

Banyak ahli mengatakan bahwa Bumi identik dengan Planet Air. Hal ini karena dua pertiga permukaan bumi tertutup oleh laut. Berbagai usaha telah dilakukan untuk mendapatkan sebesar-besarnya manfaat dari laut dalam kurun waktu setengah abad terakhir. Usaha ini dilakukan diiringi dengan perkembangan teknologi yang memungkinkan manusia untuk mengeksplorasi dan mengeksploitasi sumberdaya kelautan. Pelaksanaan penelitian ilmiah kelautan (PIK) adalah salah satu usaha untuk menambah pengetahuan tantang sumberdaya kelautan.

PIK dan pengembangan teknologi menjadi dua hal yang saling berkaitan dan mempengaruhi. PIK akan meningkatkan perkembangan teknologi dan sebaliknya perkembangan teknologi memungkinkan dilakukannya PIK yang lebih mutahir. PIK yang ekstensif tentu saja memerlukan regulasi untuk menjamin penelitian dilakukan dengan cara yang benar. Hal inilah yang mendorong dibentuknya aturan hukum yang menangani masalah PIK. Dalam hukum internasional, Konvensi Hukum Laut PBB (LOSC), khususnya Bagian XIII, adalah peraturan yang menangani masalah PIK.

Tulisan ini akan membahas penelitian ilmiah kelautan dalam perspektif hukum dan teknologi yang mencakup konsep dasar PIK; peraturan hukum tentang PIK; tren atau kecenderungan PIK dewasa ini; penggunaan teknologi dalam PIK; PIK dan geomatika; dan terakhir tentang hubungan antara Konvensi Hukum Laut dengan PIK.

Kata kunci: penelitian ilmiah kelautan, hukum laut, geomatika, teknologi

Abstract

Planet earth is identical to the Planet of Water because two-third of its surface is covered by ocean “blanket”. Efforts to get the most out of the ocean have been done extensively over the last half of 20th century. This is done along with the advancement in technology, which enable mankind to explore and exploit the ocean’s resources. Marine scientific research (MSR) is one of the efforts to get more knowledge on ocean resources.

MSR and technology development have been becoming mutual parties which influence each other. The results of MSR enable people to enhance technology to conduct more advanced MSR. However, an extensive MSR needs to be regulated to make sure it is done properly. This challenges the establishment of the legal regime in MSR. The United Nation Convention on the Law of the Sea (LOSC), especially Part XIII, is the international law that governs MSR.

This paper discusses marine scientific research in the legal and technological perspective that covers the concept of MSR; legal regime of MSR; trend in MSR; the use of technology in MSR; MSR and Geomatics; and finally discussion about the relationship between LOSC and MSR.

Keywords: marine scientific research, law of the sea, geomatics, technology

Introduction

Some experts claim that the Earth is a Planet of Water. This is because two-thirds of the earth’s surface is covered by global oceans. The global ocean is one of the resources, which promises benefits to the life of mankind. This also represents a massive amount of interdisciplinary scientific information such as biology, chemistry, geology and physics[2]. The availability of potential scientific information and the increase of needs in utilizing the ocean resources motivate people to conduct marine scientific research.

While marine scientific research has to be provided freedom to maximize its results for the wealth of people, the rapid development of marine scientific research needs regulations to ensure the research is done properly (Soon, 1982). The second statement in these two opposite tendencies leads to the need of regulations concerning marine scientific research. This particular matter is governed by Part XIII of the United Nation Convention on the Law of the Sea (LOSC).

This paper intends to discuss marine scientific research in relation to the Law of the Sea. The scope will include the principle of marine scientific research; legal regime of marine scientific research, Part XIII of LOSC, in particular; trend in marine scientific research nowadays; the use of technology in marine scientific research; marine scientific research and Geomatics and finally discussion about the relationship between LOSC and marine scientific research. In the last scope, this paper will discuss the effects of LOSC to marine scientific research and vice versa including the impact of technology on marine scientific research in the LOSC perspective; issue of copyrights concerning the data, samples and results of marine scientific research; and finally a closing remarks whether marine scientific research nowadays remains in the coverage of LOSC.

The Concepts of marine scientific research

Soons (1982) stated that it is not easy to make a definition about marine scientific research. Definition by lawyers might be different compared to that by scientists. One general definition is “any study and experimental work designed to increase man’s knowledge of the marine environment”. This research is traditionally divided into four categories: Physical oceanography, chemical oceanography, marine biology, and marine geology and geophysics. Similarly, Gorina-Ysern (2003) stated that “marine scientific research (MSR) is a term applied to a range of scientific disciplines (such as physics, biology, chemistry, geology, geophysics) concerned with the study of the ocean, its biota and its physical boundaries with the solid earth and the atmosphere.”[3]

Soons (1982) also added that the terms “pure or basic” and “applied” are acknowledged in marine scientific research. Pure, or fundamental or basic marine scientific research is to add to the sum of man’s knowledge about marine environment. Applied marine scientific research is research for specific purpose; usually to implement the result of some basic research into an application. In addition, he asserted that activities like military intelligence, weapon testing, or any activities not concerning the marine environment are not considered to be marine scientific research.

It is important to distinguish between marine scientific research and other marine activities. An important point of marine scientific research, stated by Stevens (1986), is its culmination to produce open publication of results. Although international law does not specifically provide the definition of marine scientific research, he assumed that this concept includes the traditional subdivisions of physical oceanography, chemical oceanography, marine biology, and marine geology and geophysics, irrespective of whether the research is basic or applied.[4] Similar to Soons’ opinion, some experts stated that military operations and some other activities related to resource exploration are not considered as marine scientific research.

An interesting point about military research activities is that military is acknowledged as a pioneering agency in many research fields. Internet, for example, is a popular technology initiated by US military through its ARPANET project.[5] Other significant contribution of military to the advance of science and technology is the invention of Global Positioning Systems (GPS). The technology, nowadays, is widely utilized by civilians in many applications. Simply stated, military research activities, regardless of their harmful impact to society have been contributing significantly to the wealth of mankind. Thus, concerning marine scientific research and military activities, it is important to distinguish which military activities are considered as marine scientific research and which are not.

Legal Regime of Marine Scientific Research

As previously mentioned, marine scientific research is governed by the United Nation on the Law of the Sea [6] (LOSC) Part XIII. The Convention provides detailed general principles on marine scientific research and consists of six sections. The following paragraphs briefly discuss all the sections in Part XIII of LOSC.

General provision in section 1 states that marine scientific research can be conducted by States and competent international organizations. This research should be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole.

Section 2, regulating the international cooperation, states that States and competent international organizations can promote international marine scientific research on the basis of mutual benefits. One important point is that they have to ensure a good flow of data and information transfers between the researchers and States where the marine scientific research is conducted. This process should also support developing coastal States to be able to conduct independent marine scientific researches.

Section 3 is the most important section of Part XIII because it provides detailed rules in conducting and promoting marine scientific research. This section governs marine scientific research in the territorial sea; marine scientific research in the exclusive economic zone and continental shelf; marine scientific research projects undertaken by or under the auspices of international organizations; duty to provide information to the coastal State; duty to comply with certain conditions; communications concerning marine scientific research projects; general criteria and guidelines; implied consent; suspension or cessation of marine scientific research activities; rights of neighbouring land-locked and geographically disadvantaged States; measures to facilitate marine scientific research and assist research vessels; marine scientific research in the area; and marine scientific research in the water column. From all the articles in section 3, it can be summarized that the conduct and promotion of marine scientific research has to meet several criteria. Otherwise, a coastal state can deny particular research project conducted in its maritime zones.

Section 4 regulates scientific research installations or equipment in the marine environment. It states that an installation related to marine scientific research has to be used only for the need of the research indicated in the research proposal. It is also emphasized that those installations do not create maritime zones because they are not considered as islands. They have only safety zone which may not exceed a distance of 500 meters. In addition, those installations must not interfere with shipping routes and should be equipped with identification marking, indicating the State of registry or the international organization to which they belong.

Section 5 states that States and competent international organizations are responsible to conduct marine scientific research in accordance with the Convention. It is confirmed that States and competent international organizations have to provide compensation to any damage caused by the marine scientific research they conducted or due to other contraventions of the Convention.

The last section, section 6, of the LOSC Part XIII regulates the settlement of disputes and interim measures. It is stated that if there are “disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled” in accordance with Part XIV of LOSC. During the resolution of disputes, no marine scientific research can be commenced or continued.

Another legal regime related to marine scientific research is Part XIV of LOSC, which regulates the development and transfer of marine technology. This part does not particularly provide a detail guide of marine scientific research but necessarily to regulate the process of technology transfer as the results or requirements of marine scientific research.

Trends in Marine Scientific Research Nowadays

A report issued by the by the European Science Foundation – Marine Board (ESF-MB) in 2001 revealed that the general European trend in marine scientific research is as follows: 30% oceanographic, 30% biological and 10-15% geological and multi-role.[7] Unfortunately this report does not inform about the remaining 25% of marine scientific research, but it can be concluded that the remaining 25% goes to other research field, which may not considered essential.

From the above data, it is clear that nearly one-third of total marine scientific research is dedicated to biological research. This should include fisheries and other researches related to ocean living resources. It is understandable that people are interested in conducting research related to living resources because of the needs of resources exploitation.

Another report issued in 2000 by the same organization mentions five major scientific challenges in marine scientific research: Ocean climate coupling: processes, variability and predictability greenhouse gases; Sustainable exploitation of living and non-living resources; Health of the coastal zone; biodiversity; New frontiers in marine life: biotechnology and new ecosystems; and New frontiers in ocean margin systems: seafloor studies. However, the European Science Foundation asserted that despite the need in research of particular interest, it is recommended to “support interdisciplinary research at the appropriate spatial and temporal scales”.[8]

On the other hand, public and scientific interest in Australia, as claimed by Vision Touch and Hearing Research Centre of The University of Queensland, tends to focus on the extraordinary riches of the Barrier Reef. Meanwhile “80% of Australia’s waters are deeper than 200m, where very little sampling work has been done generally and direct exploration has been negligible due to physical and technological constraints”.[9] This fact challenges the marine scientific research in the deep seabed. Similarly, Glowka (2003) stated that marine scientific research involving the study of hydrothermal vents – underwater circulatory systems driven by sub-surface volcanic activity – is one of the most interesting marine scientific researches nowadays. This research has discovered the existence of chemosynthetic-based ecosystem at hydrothermal vents on the deep seabed environment. He claims that this discovery is one of “the most important finding in biological science in the later half of the 20th century.”

The Marine Scientific Research Office of Norway, during the year 2004, has granted 28 permissions for international scientists to conduct marine scientific research in Norway’s maritime zones.[10] The recap shows that 8 research activities related to fisheries and living resources; 2 hydrographic situation; 4 herring and blue whiting; 4 basic researches in geology, geophysics and oceanography; 6 researches related to International Bottom Trawl Survey (IBTS) and deep sea measurements; 2 meteorological measurements and the rests are related to pollution, sedimentation, and submarine landslides. This results show that the interest in living resources are dominant.

In Indonesia, marine scientific research is a domain of some formal institutions such as University Research Centers, Department of Marine Affairs and Fisheries, Lembaga Ilmu Pengetahuan Indonesia, Ministry of State for Research and Technology with its BPPT, etc. In 1992, for example, Ministry of State for Research and Technology signed a Memorandum of Understanding with The Minister of Education And Science-Coordinating Minister for Science Policy of The Kingdom of The Netherlands.[11] This aimed to enhance cooperation between the two countries in science and technology cooperation including marine scientific research.

Nowadays, the Department of Marine Affairs and Fisheries, as indicated in its website, conducts some marine scientific research related to ocean living resources, especially fisheries.[12] The department also challenges participation of universities to be involved in marine scientific research. This is a prospective opportunity for universities to “taste” a real-world experience.

Technology in Marine Scientific Research

At the beginning of the promotion of ocean research, marine scientific research in diverse disciplines was conducted from research vessels and underwater vehicles. Increasingly, the use of automatic data collection systems, such as oceanographic buoys and stationary measurement and observation platforms adds significant value. However, the oceanographic research vessels remain the main research platforms.

Over the last few decades, the diverse research programs in physics, chemistry, geology and biology of the Ocean and its resources obtained from oceanographic research vessels, are equipped with observations from buoys and fixed platforms, manned submersibles and remote-sensing spacecraft and satellites.[13] The following figure illustrates the use of technology in marine scientific research.



Figure 1 The variety of technologies in marine scientific research

(source: ocean atlas)

1. Research of thermal and ice regimes of the Ocean from aircraft

2. Rocket sounding of the atmosphere

3. Orbital (satellite) Ocean research systems

4. Meteorological probes

5. Oceanographic platform

6. Data collection and processing centre

7. Hydrographic vessels

8. Deep-sea drilling vessel.

9. Support vessel for deep-diving submersibles

10. Universal research vessels

11. Oceanographic buoy

12. Deep-water trawl and dredge

13. Underwater habitation module

Marine Scientific Research and Geomatics

It is important to bare it in mind that some geomatics and surveying activities related to ocean are not considered as marine scientific research. Hydrographic surveying, for example, according to LOSC is not a marine scientific research. This is actually debatable since hydrographic surveying can be considered as an applied marine scientific research (Soons, 1982). He confirmed that this is because it aims to add man’s knowledge about sea floor and provide information about waves, currents and tidal phenomena, underwater rocks, shoal and other hidden dangers for the purpose of preparation of nautical publications such as sailing directions, tide tables, current charts and light lists. It can be concluded that hydrographic surveying can be a part of marine scientific research as long as the results are open for publication and does not directly aim to conduct ocean resource exploration and exploitation.

On the other hand, remote sensing, as an important “branch” Geomatics has been used as a popular technique to conduct marine scientific research since its early development. The ability of satellite to monitor ocean surface and even underwater is a good opportunity to conduct marine scientific research without any complicated administrative matters. This is because satellite does not have to gain consents to pass over particular ocean area on earth. This technique is predicted to be able to challenge changes in the legal regime of marine scientific research, the law of the sea.

Marine scientific research and the Law of the Sea

At the early time of LOSC emergence, some experts claimed that LOSC could significantly affect the way the marine scientific research is done. Stevens (1986) stated the regulations in LOSC can be one of the constraints to marine scientific research. This, one of them, is because of the need to request consents before conducting marine scientific research, especially those done in other States’ jurisdictions. He also added that LOSC does not provide the systematic procedure by which a coastal state can delay, disrupt of disapprove a request for clearance.

Similarly, Knauss (1985) mentioned some possible effects: the need of international agreements; changes in area in which marine scientific research is undertaken; and research techniques. He also noted that in general, the legal constraints can cause negative impact on ocean science including: loss of opportunity because of the slow process in issuing permission; some coastal states which are isolative to marine scientific research will have more reasons to deny any marine scientific research in their jurisdictions; and the possibility of failure in conducting an important international research program because some coastal states may reject to cooperate.

It is noted that the development in science and technology, especially in the development of fisheries and oil and gas resources, has provided significant contribution to the change in the law of the sea. The extension of territorial sea from 3 nm to 12 nm and that “the edges of the high sea have been carved into the resource zone of continental shelf and exclusive economic zone” are examples of such significant influences (Knauss, 1985). For the future law of the sea, he predicts some possible changes:

1. The development of seabed resources are found to be economically viable and it seems that deep seabed regime in LOSC will be in order.

2. The development of living resources can possibly give special standing to coastal states concerning the 200 nm EEZ.

3. The advancements in technology to identify submarine vessel may change provisions that LOSC requires submarines to remain on the surface while in another nation’s territorial sea.

4. Other changes might be made related to long-range weather forecasting; global pollution; and waste disposal in the oceans.

Concerning the copyright of marine scientific research data, samples and results, Gorina-Ysern (2003) claimed that LOSC does not deal with their proprietary. The ownership of such data, samples and results should have been governed by the Intellectual Property Rights regimes (IPRs). However International protection is dependent upon interested states’ membership in international IPR treaties. International law has not dealt with these interrelated issues adequately. The same author then argued that due to these phenomena, it is necessary to integrate MSR regulation under LOSC and international law regimes including: Convention on International Trade in Endangered Species of Flora and Fauna (CITES); the 1992 Convention on Biological Diversity (CBD); the General Agreement on Tariffs and Trade (GATT); and the Trade Related Aspects of Intellectual Property (TRIPS) Agreement provisions.

Concluding Remarks

From the above discussion it is clear that there is an interrelationship between the law of the sea and marine scientific research. The development of technology (as a result of marine scientific research) has widened possibility to conduct advance marine scientific research, and extensive marine scientific research requires strong regulations. This can possibly lead to the changes in the legal regime on marine scientific research in the future.

Some experts in marine science claim that LOSC needs revitalizations to keep it capable to accommodate the advance of marine scientific research nowadays. Glowka (2003), for example, claimed that Part XIII of LOSC provide a departure point for managing scientific activities at hydrothermal vents. This is because the regulation was originally intended to apply to species targeted by fishing activities; meanwhile activities at hydrothermal vents do not resemble fishing.

Footnotes

[1]A lecturer at Teknik Geodesi, UGM, currently a research student at UNSW, Sydney, australia.

[3]see also ASIL insight

[4]see also UNOLS website

[5]see also History of ARPANET

[6]see also UNCLOS online

[13]see also a theOcean Atlas

References

European Science Foundation [online], (2000), Towards a European Marine Research Area, available: http://www.esf.org/publication/150/area.pdf

European Science Foundation [online], (2001) 3rd European Research Vessel Operators Workshop Roma, Italy 19th – 20th April 2001, available: http://www.esf.org/generic/625/MinutesofERVO2001.doc

Glowka, L. (2003), Putting Marine Scientific Research on a Sustainable Footing at Hydrothermal Vents, Marine Policy 27: 303-312

Gorina-Ysern, M. [online] (2003), Legal Issues Raised by Profitable Biotechnology Development Through Marine Scientific Research, ASIL insight, available: http://www.asil.org/insights/_edn9

History of ARPANET at http://www.dei.isep.ipp.pt/docs/arpa.html

Knauss, J. A. (1985), The Effect of the Law of the Sea on Future Marine Scientific Research and of Marine scientific research on Future Lao of the Sea, Louisiana Law Review 45: 1201-1219

Marine Scientific Research Office of Norway [online] (2004), Results from Foreign Research Cruises in Norwegian Jurisdiction Area, available: http://www.fiskeridir.no/msr/index.html

Marshall, J. et al. [online] (1998), Deep-Sea Submersible Expedition to Australia and New Zealand: Prospectus, available: http://www.vthrc.uq.edu.au:16080/ecovis/images/JSLAus.PDF

Soon, A. H. A. (1982), Marine Scientific Research and the Law of the Sea, Kluwer Law and Taxation Publishers

Stevens, L. R. [online] (1986), Handbook for International Operations of U.S. Scientific Research Vessels, University -National Oceanographic Laboratory System, available: http://www.gso.uri.edu/unols/for_cln/for_cln.html

United Nation Convention on the Law of the Sea [online] (1982), available: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf


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