Marine Scientific Research Arctic. Arctic Perspectives on the Law of the Sea Convention

Essay 2015 9 Pages

Law - European and International Law, Intellectual Properties


Marine Scientific Research in the High Seas Arctic Perspectives on the Law of the Sea Convention[1]

Stefan Kirchner

This short essay introduces the reader to the aspects of the United Nations Convention on the Law of the Sea, often simply referred to as the Law of the Sea Convention[2] (LOSC[3] ) which are often overlooked but which play a crucial role already today and which are bound to become more important in the future. Marine scientific research is no longer merely of academic interest. Oil, gas, fish and in the near future also natural resources at the sea bed are important economic factors. In particular in the Arctic Ocean,[4] which is becoming more accessible due to climate change and the fast[5] decline of the sea ice cover,[6] competing claims to the sea provide new challenges.[7] These conflicts include the territorial dispute between Denmark (which despite Greenland’s increased autonomy retains control over the island’s foreign affairs) and Canada over Hans Island, At the time the 1982 Convention was drafted, the idea that commercial mining of the Deep Sea Bed was just around the corner. While the technological development immediately after the adoption of the Law of the Sea Convention took longer than had been thought initially, advances in recent years have made deep sea mining a more realistic possibility. Indeed, several claims have been staked around the world. A distinction has to be made between claims to the Continental Shelf (which is not to be confused with the Deep Sea Bed) as an extension of the sovereignty of the state over the land on one hand and usage rights in parts of the Deep Sea Bed on the other. But also in other parts of the sea, marine scientific research plays an important role. At a time of increasing geopolitical tensions not only between Russia and the West but also e.g. between China and other nations in the Western Pacific (to avoid the term “South China Sea”, which might be misunderstood to imply a legal claim on the part of China[8] ), marine scientific research might easily be seen as a cover for espionage or as a precursor to legal claims. This makes it necessary to ensure awareness of the existing international legal rules which govern marine scientific research. This essay only deals with general considerations, not with questions concerning marine scientific research within waters which are undisputedly under some form or other of state control in the widest sense of the term, be it the territorial sea, the Exclusive Economic Zone or on the Continental Shelf.

These rules can be found in Part XIII of the Law of the Sea Convention.[9] While not all major maritime powers are parties to the LOSC, the Convention remains the prime point of reference, in particular as it also reflects in large part the existing customary international law. At least the most fundamental norms, such as the idea behind Articles 238 and 241 LOSC, will long have become customary international law or even reflect customary law which already was in existence before the drafting of the Law of the Sea Convention: the latter norm emphasizes that marine scientific research does not provide a basis for legal claims.[10] This is in line with general developments in international law according to which mere exploration no longer provides a legal basis for title to land territory. Even if one assumes a somewhat lower standard for the acquisition of title to territory by states in the context of more remote, in particular Arctic, territories,[11] mere exploration is no longer considered sufficient (although exploration continues to play an important role in the context of claims to the Continental Shelf). This applies not only to land territory but also means that endeavors such as Russia’s planting of a flag at the bottom of the Arctic Ocean near the North Pole.[12]

Article 238 LOSC ensures the fundamental principle that all states have the right to engage in marine scientific research,[13] of course “subject to the rights and duties of other States as provided for in this Convention”.[14] This right is based on the notion of the freedom of the seas, which has dominated the law of the sea for centuries and which is coming under pressure due to coastal state claims in recent years. In particular the increasing role of offshore industries, be it for the exploration of hydrocarbons or renewable energy, for example regarding wind or wave energy, but also fish farms etc., will make it more likely that coastal states will increase their claims. Keeping in mind incidents such as Greenpeace’s Arctic Sunrise protest against oil exploration in the Arctic and its domestic and international legal repercussions, it is becoming increasingly clear that coastal states will have security concerns and will take measures to protect their offshore installations. The Convention, however, dates back to a time before the current phase of such pressure.


[1] Associate Professor for Fundamental and Human Rights, with Special Focus on Indigenous Rights, University of Lapland, Rovaniemi, Finland; former Assistant Professor for the Law of the Sea, Vytautas Magnus University, Kaunas, Lithuania; Rechtsanwalt (admitted to the bar in Germany), Doctor in Social Sciences (Vytautas Magnus University, Kaunas, Lithuania), Magister Juris Internationalis (Justus-Liebig-University). This article only reflects the author’s personal opinion.

[2] United Nations Convention on the Law of the Sea, http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf. (All websites referred to in this text are up to date as of 28 November 2014.)

[3] The abbreviation LOSC is used here in preference over the frequently found abbreviation UNCLOS, for United Nations Convention on the Law of the Sea, in order to avoid confusion with the UN conferences which developed the law of the sea and which are commonly referred to as UNCLOS, UNCLOS II and UNCLOS III, see also Eric LeGresley, The Law of the Sea Convention, 1993, http://publications.gc.ca/Collection-R/LoPBdP/BP/bp322-e.htm, Introduction, B.

[4] On the international legal framework regarding marine research in the Arctic see in more detail Yoshinobu Takei, Polar Complications in the Law of the Sea: a Case Study of the Regime for Research and Survey Activities in the Arctic Ocean, http://www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf6/S3P2-P.pdf.

[5] See Julienne Stroeve, Marika M. Holland, Walt Meier, Ted Scambos, Mark Serreze, Arctic sea ice decline: Faster than forecast, in: 34 Geophysical Research Letters (2007), DOI: 10.1029/2007GL029703, http://onlinelibrary.wiley.com/store/10.1029/2007GL029703/asset/grl23061.pdf?v=1&t=i347jb6m&s=29fcbd720990a6b911a7a5bf71f09ed1e78736ba; S. V. Nghiem, I. G. Rigor, D. K. Perovich, P. Clemente-Colón, J. W. Weatherly, G. Neumann, Rapid reduction of Arctic perennial sea ice, in: 34 Geophysical Research Letters (2007), DOI: 10.1029/2007GL031138, http://onlinelibrary.wiley.com/store/10.1029/2007GL031138/asset/grl23632.pdf?v=1&t=i3477lvp&s=317bb7c175e0d5f567c0753e097fbfee40a735ba.

[6] See Marika M. Holland, Cecilia M. Bitz, Bruno Tremblay, Future abrupt reductions in the summer Arctic sea ice, in: 33 Geophysical Research Letters (2006), DOI: 10.1029/2006GL028024, http://onlinelibrary.wiley.com/store/10.1029/2006GL028024/asset/grl22398.pdf?v=1&t=i3474tnh&s=d05972783f0314b10bf61291d7237cb95a9f291a; D. A. Rothrock, Y. Yu, G. A. Maykut, Thinning of the Arctic sea-ice cover, in: 26 Geophysical Research Letters (1999), DOI: 10.1029/1999GL010863, http://onlinelibrary.wiley.com/store/10.1029/1999GL010863/asset/grl12481.pdf?v=1&t=i347o3f2&s=5d40f3586e31d5310f70bc3d7e9f89b62519a51f.

[7] Stephanie Holmes, Breaking the Ice: Emerging Legal Issues in Arctic Sovereignty, in: 9 Chicago Journal of International Law (2008-2009), 323.

[8] In particular in maritime areas, terms used to describe regions have to be used with caution when claims to sovereignty are concerned. Just like India cannot claim to rule the entire Indian Ocean, nor Iran the entirety of the Persian Gulf, no legal consequences follow from referring to the disputed waters as the South China Sea. The nine-dash line employed by China for the purpose of claiming sovereignty over the sea likewise is of very limited legal value, if any.

[9] Articles 238 et seq. LOSC.

[10] Article 241 LOSC.

[11] On this issue see Birutė M. Salinaitė, Stefan Kirchner, States’ Title to Territory in Remote Areas and Indigenous Peoples in the Arctic, forthcoming.

[12] On this see Holmes, op. cit., 323.

[13] Article 238 LOSC.

[14] Ibid.


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Arctic Sea Ocean Law International Law Law of the Sea



Title: Marine Scientific Research Arctic. Arctic Perspectives on the Law of the Sea Convention