In July of 1995 the NOAA oceanographic ship Malcolm Baldridge entered waters under the jurisdiction of the Seychelles for the conduct of scientific research. The research program included measurements to be taken in an area of the ocean designated by the Seychelles as an environmental park. The State Department had provided assurance to the Malcolm Baldridge that approval for the scientific expedition had been granted by the Government of the Seychelles. This was indeed true. During the port call preceding the conduct of experiments a meeting was held with the Director of the Park. The Director informed the ship that, under the Laws of the Seychelles permission to conduct scientific research had to be given by the Park Director. The Director had not been contacted by his own government and the Malcolm Baldridge was informed by the Director that permission was denied. As a result the ship did not enter that area for the conduct of its research. This was of course a political decision to avoid embarrassment to the Government of the Seychelles.
A paper by Knauss and Katsouros published in 1985 reviewed the requests and denials for permits in the period 1979 to 1984. A very significant number of research opportunities were lost as a result of denials but an almost equal number were lost by delays in the process which resulted in the granting of permission too late for the conduct of the research. If we understand the social mechanism of the delay process we may find some insight into the pros and cons of ratification.
Let us begin as every analysis of ocean should begin by noting the unique physical properties of water as a fluid and as a continuous media.
Unlike solid media, particles of fluid do not maintain their spatial relationship. It is not possible to use a Lagrangian frame of reference to describe the future location of the fluid particles which result from the application of an influence at a particular point or over a particular ecologically or environmentally defined region. When the nature of the ocean as a continuous media is added to our understanding then it must be recognized that every influence will have, in theory, an effect, including a molecular presence, on every other point in the ocean. While this influence is negligible or presumed to be negligible in many instances, in a very large number of operations it is not and of greater significance to the permit process it is presumed that it is not.
The perennial paradox of science that it is not possible to measure the environment without changing the environment is amplified by the physical nature of the water environment. Seismic exploration requires explosive charges which can be detected globally, Low frequency sound used for long range communication can be detected thousands of miles from the source, pollutants introduced by one source can be detected by modern science in concentration less than one part in a million in remote parts of the sea. Flotsam and jetsam including the ubiquitous McDonald Hamburger container can be found all over the world's oceans. High frequency sounds used for scientific purposes can easily be of an intensity to have a measurable effect of biological organisms who in turn have an oceanic mobility. As a result the effects of any experiment will cross over many legal boundaries in the ocean. Herein lies the rub.
With or without ratification of
the treaty there are many oceanic boundaries which are transparent
to physical effects but which dramatically change the legal regime
with respect to the permits which are required for the conduct of
scientific research. In 1958 these boundaries with respect to
scientific research were very limited consisting of the high seas,
the territorial waters, and the continental shelf. The high seas
regime did not require consent the continental shelf required
consent which was not to be normally denied and the territorial
waters had a sovereignty which is preserved in the current text in
the form of Article 245 viz:
Coastal States, in the exercise
of their Sovereignty, have the exclusive right to regulate,
authorize and conduct marine scientific research in their
territorial sea. Marine scientific research therein shall be
conducted only with the express consent of and under the conditions
set forth by the coastal state.
At that time the only high entropy regime (i. e. uncertainty as to the ease or difficulty of obtaining the legal right to conduct scientific research.) was the continental shelf.) The significant aspect of any consent regime is that Departments rarely make decisions vis - vis consent without consultation with some appropriate agency or agencies within their own government. We can imagine that, in the Soviet Union, requests for the conduct of scientific research on the continental shelf were routinely referred to the military departments and perhaps to some non military continental shelf agency similar to our Department of the Interior. The Soviet Union denied every request made under the 1958 shelf regime and we must presume that these denials were made for political and national security reasons by the military. Little coordination was required and the denials were prompt. There were occasions where the Continental Shelf consent regime served a very convenient political function in by passing disagreements as to the legality of certain oceanic boundaries. Chile Ecuador and Peru declared 200 mile territorial seas which required consent for the conduct of science. The United States refused to acknowledge any territorial sea greater than six miles (de jure), or twelve miles (de facto). When there was a mutual desire for the conduct of research within the 200 mile zone the Institutions conveniently introduced some continental measurement into the experiments thereby creating the requirement for consent without acknowledging the validity of the territorial sea.
Even before ratification of the Treaty regime the oceanic boundaries of significance have dramatically changed. Freedom of scientific research still exists on the high seas. But the 200 mile Exclusive Economic Zone and the Continental shelf are now under the consent/obligations regime of the Treaty or under some unilateral regime determined by the coastal state. Once again it is expected that "States shall, in normal circumstances grant their consent for marine scientific research projects" But there are now a number of new reasons and regions in which states may withhold consent. Each of these reasons and regions now involve one or more new agencies of the coastal state who have the right, if not the duty, to make legal determinations as to whether the facts of the scientific study place it in a prohibitive category. Agencies who will get to review the proposal include the resource agencies for fish, minerals, environmental agencies concerned with "the introduction of harmful substances," coastal engineering agencies concerned with the construction operation of 'installation' etc. Two new uncertainty (high entropy) factors are thus introduced: the proliferation of agencies having veto power over the operation and political considerations associated with resource competition, marine mammal protection, and environmental protection.
The time delays which are introduced by these complexities can be long and protracted even if the evaluations are carried out at "arms length". In the event that there is a negotiation on the part of any of these agencies with respect to the obligations of Article 249 then the costs of the project can be greatly increased. (In particular Article 249 which obligates the researching state to allow participation in the project without the expectation of remuneration of the coastal state scientists, or contribution to the project from the coastal state, is the epitome of political naivety, on the part of land based legal draftsmen, who have little understanding of the culture of the sea.) This proliferation of agencies and introduction of political factors now places a heavy premium on the resolution or bypassing of political problems before any scientific voyage associated with the project is undertaken.
Perhaps the largest area for political disagreement arise in the area of boundary determination. The initial responsibility and authority for determining coastal state oceanic boundaries is the coastal state itself. Article 16 requires the coastal state to prepare charts of its baselines, to publicize them and to deposit them with the United Nations. These baselines have been expanded by the Treaty to include Archipelagic baselines, thereby increasing large areas of the ocean over which absolute control of scientific research is allowed. The rules for drawing archipelagic baselines are very complex and easily subject dispute. Where uninhabited islands or reefs are included in the definition then large areas of the ocean can be encompassed. If however rigid adherence to Article 1 the definition of islands then many archipelagic claims will be reduced. The decision as to whether an island qualifies under the regime of islands depends a determinations to whether it can sustain human habitation or an economic life of their own. In all of these determinations the coastal state makes the initial evaluation and declaration. An island such as Okino Tori Sh'ma in the middle of a great 'Doughnut hole" of high seas will depending the assertion by Japan or the denial by other coastal states changes the jurisdictional area of the EEZ by more than 125,000 square miles. Herein lies the first substantive difference between ratification and non ratification.
The current stance of the United States with respect to the Law of the Sea Treaty is embodied in the Reagan Declarations on the EEZ and the width of the Territorial Sea. Were it not for these declarations and in the event of non-ratification the United States by virtue of its ratification of the United Nations Charter is obligated not to carry out any activities which are inconsistent with the Treaty. Since the United States has not ratified the Treaty on Treaties its obligations under the Treaty are not further constrained. But the United States has adopted portions of the Treaty through the Reagan Declaration of March 10 1983. In accordance with his Constitutional right with respect to Foreign Policy in areas beyond National Jurisdiction, the Reagan Declaration states that
"the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states. The significant departure from the Treaty is the assertion by the United that it will determine its rights and freedoms as against the determination by the coastal state. As in the Gulf Sidra if the United States does not recognize the baseline then the United States by virtue of the drafting of this paragraph is not bound to respect the rights of other states as reflected in the Convention so long as the United States acts in consistently with respect to the convention. This changes the mechanism for disputes over boundaries which have been determined in accordance with the convention. In the event of ratification by the United States it would be bound by the process defined in the treaty for challenging ocean boundaries declared by the coastal state. This process is long and tedious and one cannot conceive of this process as effective in the granting of consent for the conduct of ocean science research. Nor can one conceive of a coastal state altering its oceanic boundaries in order to grant consent for a single scientific mission.
There are other handles over oceanic states that the United States has which are inherent in the Declaration. Many of these derive from the gifa's which many states have been persuaded to sign in accordance with the Magnussen Act. The Magnussen Act anticipates the successful completion of the Treaty and the presumption that the provisions of the Act are or will be in accord with the Treaty. In the absence of U. S. ratification Nations who do not comply with our interpretation of the rights and duties under the Treaty will be denied the benefits of the Magnussen Act. Each of these empowerment of the United States with respect to its interpretation of the Treaty provisions has been and will be counterbalanced by political unhappiness on the part of those coastal states who have made contrary determinations.
By ratification the United will indeed be more
limited in the restriction of exaggerated or illegal coastal state
claims of jurisdiction and ability to deny consent but the United
will be empowered with a number of politically non-powerful
affirmative action provisions of the Treaty. For example in the
conduct of science for the measurement of ocean pollution the
United States would be empowered for the granting of consent by
Article 204. Article 204 imposes an obligation on states within
their own territorial and inland waters viz:
1. States,
shall, consistent with the rights of other States, endeavor, as far
as practicable, directly or through competent international
organizations, to observe, measure, evaluate and analyze, by
recognized scientific methods, the risks or effects of pollution of
the marine environment.
2. In particular, States shall keep
under surveillance the effects of any activities which they permit
or in which they engage in order to determine whether these
activities are likely to pollute the marine environment.
In invoking this provision there is a scientific presumption that an increase in ocean temperature is a measure of pollution of the marine environment. Not all scientists will agree. (I remember a vigorous, if not emotional debate, in the Ocean Studies Board as to whether the DUMAND project was or was not oceanography. Protagonists for DUMAND claimed that the measurement of naturally occurring Cerenkov radiation in the ocean environment together with the radiation spectrum of bioluminescence was ocean science in every sense of the word. Opponents argued that the purpose of DUMAND was the detection and analysis of muons and neutrinos from the farthest reaches of space and would in no wise constitute oceanography in the sense that it is a science that gives an understanding of the ocean.) (Also remembered is Elliot Richardson's dictum that the mere collection of data does not constitute ocean science.)
There are many other hortatory articles in the text which could be employed as persuasions of reluctant coastal states but these articles are easily avoided, particularly if compliance results in the expenditure of resources not otherwise contemplated.
During the authors tenure as Marine Affairs Coordinator he insisted that no substantive work be accomplished on any ocean project until all political and permit problems had been resolved. In the case of the Natural Energy Laboratory and the Mini OTEC experiment this involved a period of about fifteen months. Public meetings and hearings were virtually unattended and since that time (1975) oceanic research involving installations on the seabed extending out in a research corridor to fifteen miles in depths of water greater than 10,000 feet have taken place without delay or incident associated with the permitting process or conflict of State and Federal Jurisdictional and regulatory claims. One potential conflict situation arose when the Federal Government deployed the OTEC 1 ship in the corridor without a request for a permit to operate in the research corridor waters. The State Agency involved with the permit assumed that the arrival of the ship was a constructive request for a permit and the permit was granted on that basis. When there is a will, there is a way. When there is a will not, the way is long and tortuous and the path uncertain regardless of the absolute character of the law.
Thus the mere existence of a United Nations treaty which includes a regime of science is a high information entropy regime in which the ability of scientific institutions to plan, budget schedule and deploy is probabilistic with sequential uncertainties that can frustrate and increase the cost of the enterprise. This analyses of the interaction of legal and political considerations highlights the fact that under International Law the coastal state makes the determination and declaration of its boundaries and jurisdiction on the basis of its own interpretation of the International Laws and Treaties to which it believes itself to be bound. This jurisdictional regime is at least 200 miles and for some continental shelves extends to 350 miles from a highly elastic baseline. Whenever there is a political reason for a coastal state to deny consent for scientific research, regardless of the ratification or non ratification of the Treaty by the parties to the procedure, a way can be found within the flexibility of the law and its interpretation to forestall, delay or deny the permit until the political problem is resolved or bypassed. Failure of the scientific community to appreciate this fact will doom it to an increasingly frustrating process of delay and denial to the detriment of its budget and its scientific mission.