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There are serious shortcomings in the regime. It does not define MSR on the basis of the activity. It does not establish objective criteria to determine what activities are “for the promotion of scientific knowledge of the marine environment in the interests of the whole mankind”. And it does not establish criteria for determining “peaceful purpose”. The 1982 UNCLOS Articles 248 and 249 list some reasons for the coastal State to withhold its consent to certain MSR activities conducted by another state, but the reasons listed only relate to natural resources. Nevertheless, by providing these reasons, the 1982 UNCLOS emphasizes the sovereign rights of the coastal State for natural resources and its exclusive jurisdiction over MSR in the EEZ.
The exclusive jurisdiction over MSR in the EEZ entrusted by the 1982 UNCLOS includes jurisdiction over scientific research platforms. However, the technology of MSR is advancing, including the development of aerial and space based remote sensing platforms. Thus the jurisdiction of the coastal State over MSR in the EEZ has become weaker. Moreover, some countries intentionally make distinctions between MSR activities and marine survey activities so as to avoid the jurisdiction of coastal State. This practice has made the regime of MSR in the EEZ more complicated and problematic.
Moreover, MSR activities are very diverse. The process, the operations, the characteristics, and the goal of MSR cannot be captured by this simple term. Thus it is difficult to differentiate MSR from marine survey activities. Further many expeditions collect data at sea and divide it later as to purpose and use.
Law regulates the actions of the legal person and governs the activities of the actor. If a law can not provide permissive, restrictive or prohibitive orders for the legal person, then it is not a successful law. The 1982 UNCLOS does not define MSR on the basis of action, and it does not define MSR for “exclusive peaceful purposes” and the “promotion of scientific knowledge of the marine environment in the interests of the whole mankind”. Nor does it define the operational modes, and means of MSR. Thus the MSR regime in the EEZ is largely undefined leading to conflicting positions regarding jurisdiction.
The 1982 UNCLOS, by entrusting the coastal State with exclusive jurisdiction over MSR in its EEZ, has actually entrusted the coastal State with the jurisdiction and the right of supervision over MSR platforms and their activities in EEZ. Thus, the scientific research platforms of other states operating in the EEZ of a coastal State must observe the coastal State’s relevant laws and regulations, and they have the obligation of submitting to on-the-spot supervision and jurisdiction of the coastal State. If “marine surveys” or “military surveys” carried out by MSR platforms were to be excluded from the scope of MSR, any MSR platform could carry out activities in the name of non-MSR in EEZ without any restrictions. Surely this was not what was intended. Eventually this would lead to a collapse of the present MSR regime in the EEZ.
4. “Freedoms of Navigation and Overflight” and “Other Internationally Lawful Uses of the Sea”
Article 58 of the 1982 UNCLOS states that “in the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight, ……and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships and aircraft, …… and compatible with the other provisions of this Convention”. Presently, the main dispute over this stipulation is the “quality” and the quantity of these “freedoms of navigation and overflight” and “other internationally lawful uses of the sea related to them”. Some countries argue that their military and reconnaissance activities in EEZ of other States are protected by the “freedoms of navigation and overflight” or “other internationally lawful uses of the sea related to the freedom” stipulated in the Convention. Other states maintain that these activities are abuses of the freedoms of navigation and overflight, or that these activities are not included in the stipulated freedoms and are not internationally lawful uses.
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