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This article was downloaded by: [University of Waterloo] On: 18 October 2014, At: 20:19 Publisher: Taylor & Francis Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Ocean Development & International Law Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uodl20 Governing Marine Scientific Research in China ZOU KEYUAN a a East Asian Institute, National University of Singapore, Singapore Published online: 10 Nov 2010. To cite this article: ZOU KEYUAN (2003) Governing Marine Scientific Research in China, Ocean Development & International Law, 34:1, 1-27, DOI: 10.1080/00908320390154565 To link to this article: http://dx.doi.org/10.1080/00908320390154565 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms- and-conditions

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Page 1: Governing Marine Scientific Research in China

This article was downloaded by: [University of Waterloo]On: 18 October 2014, At: 20:19Publisher: Taylor & FrancisInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Ocean Development & International LawPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/uodl20

Governing Marine Scientific Research inChinaZOU KEYUAN aa East Asian Institute, National University of Singapore, SingaporePublished online: 10 Nov 2010.

To cite this article: ZOU KEYUAN (2003) Governing Marine Scientific Research in China, OceanDevelopment & International Law, 34:1, 1-27, DOI: 10.1080/00908320390154565

To link to this article: http://dx.doi.org/10.1080/00908320390154565

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the“Content”) contained in the publications on our platform. However, Taylor & Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoever orhowsoever caused arising directly or indirectly in connection with, in relation to or arisingout of the use of the Content.

This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

Page 2: Governing Marine Scientific Research in China

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Ocean Development & International Law, 34:1–27, 2003Copyright 2003 Taylor & Francis0090-8320/03 $12.00 + .00DOI: 10.1080/00908320390154565

Received 15 October 2001; accepted 3 January 2002.The author is grateful to Professor John Wong and Mr. Aw Beng Teck for their helpful

suggestions and comments on the previous version of this article.Address correspondence to Zou Keyuan, Senior Research Fellow, East Asian Institute, Na-

tional University of Singapore, 7 Arts Link, Singapore 117571. E-mail: [email protected]

Governing Marine Scientific Research in China

ZOU KEYUAN

East Asian InstituteNational University of SingaporeSingapore

The 1982 United Nations Convention on the Law of the Sea has created a consentregime for coastal states to manage, control, and promote marine scientific researchin offshore areas within their national jurisdiction. China, as a party to the Law ofthe Sea Convention, has promulgated laws and regulations on foreign-related ma-rine scientific research conducted within its jurisdictional waters. This article ad-dresses the legal regime on marine scientific research in general and the Chineselegal governance in particular.

Keywords China, the marine scientific research, UN Convention on the Law ofthe Sea,

Introduction

Scientific research promotes and advances human civilization. Since the oceans covermore than 70 percent of the Earth, it is natural and inevitable that much scientific re-search be done in this area. Marine scientific research (MSR) not only relates to the seabut can also contribute to finding solutions to problems generated on land,1 as well ashelping to accumulate scientific knowledge for human development.

China, as an ancient civilized country, has a long history of MSR. As early as in theHan Dynasty (206 B.C.–220 A.D.), tides were being studied, during the Tang Dynasty(618–907 A.D.), the sea currents and ocean temperatures were being recorded and ex-amined.2 Nevertheless, despite the four grand innovations in its ancient history, China’soverall level of scientific research, including its research in the marine sector, lagged farbehind that of the rest of the world. After the founding of the People’s Republic ofChina (PRC), in 1957 China prepared a 12-year marine scientific research program, andin 1964, the newly established State Oceanic Administration (SOA) was placed directlyunder the State Council in charge of marine affairs. Since the economic reform andopen door policy of 1978, China’s marine research has developed rapidly. Marine scientificsurveys have been carried out from China’s coastal sea belt to the deep ocean seabed.

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As of 1999, China had 10,000 marine scientists and more than 300 marine scientific andeducational institutions.3 In the next decade, China will escalate its efforts to establish amarine scientific system centered on research in China’s offshore areas, with the pur-pose of efficiently utilizing marine resources and in keeping pace with the internationalresearch on both global climate change and reduction of marine pollution.

China’s domestic MSR is managed by various governmental departments and edu-cational institutions.4 This article will not detail the developments of China’s domesticMSR,5 nor assess the laws and regulations applicable to China’s domestic MSR;6 ratherit will focus on China’s legal governance of MSR conducted solely or jointly by for-eigners in the sea areas within China’s national jurisdiction. One thing which should beborne in mind is that there is a distinction in China between “marine scientific research”and “marine scientific investigation.” The former refers to the basic sciences relating tothe ocean, such as marine biology, marine chemistry, marine physics, etc., where thework is conducted in research institutes and where data and samples from field surveysare needed. Marine scientific investigation refers to the field investigation conducted byscientific vessels at sea relating to marine science.7 In this sense, China’s legal regimefor MSR is the one governing foreign-related marine scientific investigations, ratherthan “pure” scientific research done in the laboratory unless the research constitutes alater stage of the marine scientific investigation.

MSR and the United Nations Conventionon the Law of the Sea

MSR was a new subject matter to be governed by the 1982 United Nations Conventionon the Law of the Sea (the LOS Convention).8 Before the emergence of the LOS Con-vention, MSR could be carried out in accordance with the principle of freedom of seasexcept in the internal waters and territorial seas which were subject to the sovereignty ofcoastal states, though the freedom of scientific research was not expressly mentioned incustomary international law. MSR was first regulated in international conventional lawin 1958 through the Convention on the Continental Shelf.9 The Continental Shelf Con-vention contained several provisions regarding MSR on the continental shelf. It pro-vided that:

[t]he consent of the coastal State shall be obtained in respect of any researchconcerning the continental shelf and undertaken there. Nevertheless, the coastalState shall not normally withhold its consent if the request is submitted by aqualified institution with a view to purely scientific research into the physi-cal or biological characteristics of the continental shelf, subject to the pro-viso that the coastal State shall have the right, if it so desires, to participatein the research, and that in any event the results shall be published.10

The same provision further provides that the exploration of the continental shelfand the exploitation of the state’s natural resources must not result in any interferencewith fundamental oceanographic or other scientific research carried out with the inten-tion of open publication.11 During UNCLOS III, the above provisions were adopted intothe text of the LOS Convention applicable to the MSR in the exclusive economic zone(EEZ) and on the continental shelf, notwithstanding that the LOS Convention alreadycontained more detailed regulations in this respect and despite the fact that the above1958 provisions had been criticized and queried in the legal literature.12

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UNCLOS III

During UNCLOS III, MSR was one of the hot issues, particularly regarding MSR in theEEZ. The developed countries preferred an open legal regime for MSR, while the devel-oping countries wanted to strengthen the control of MSR by coastal States.13 The nego-tiations were concerned with finding a compromise between the following two conceptsapplicable to MSR in the EEZ and on the continental shelf: (a) prior or explicit consentof the coastal state for the conduct of MSR, and (b) notification, based on the principleof freedom of scientific research in the high seas.14

China’s Position at UNCLOS III

During the debate on MSR’s legal regime, China’s position and suggestions could notbe ignored, as it was the largest developing country in the world community. As indi-cated in its Working Paper in 1973, China preferred control of the MSR by the coastalstate in the “sea area within the national jurisdiction” where prior consent of the coastalstate concerned must be sought and the relevant laws and regulations observed.15 Thesea area within the national jurisdiction in China’s view included the internal waters, theterritorial sea, the EEZ, and the continental shelf. It should be noted that during UNCLOSIII, China only submitted three working papers expounding its position on the law ofthe sea issues and one of the working papers was on MSR. From this, it can be seen thatChina regarded the MSR and its legal governance highly.

In addition to its Working Papers China submitted joint proposals with other devel-oping countries to incorporate the need to seek the express consent of the coastal statefor the conduct of MSR within the area under its sovereignty and jurisdiction.16 Chinaexpressed its opposition to the “freedom of scientific research” in the EEZ proposed bythe two superpowers, the then–Soviet Union and the United States.17 It emphasized theprinciple of consent by the coastal state for any MSR carried out in waters over which ithad jurisdiction “in order to safeguard the sovereignty and security” of the coastal state.18

In addition, China questioned the validity of the then-existing rules of international law,stating that

many of those rules had been established before the majority of developingcountries became independent and did not conform with their interests. Theworld had changed, and developing countries could not be asked to acceptout-of-date laws which operated to the sole advantage of the superpowers.19

To China, the so-called “freedom of scientific research” advocated by the “super-powers” was “only the freedom to violate the sovereignty of other states and to mo-nopolize marine research.”20 China rebutted the so-called “fundamental scientific research”proposed by the “superpowers.” The Chinese delegation “wondered whether there couldbe any fundamental scientific research in today’s world that was not related, directly orindirectly, to specific military or economic purposes.” It was charged that the superpow-ers, “on the pretext of ‘fundamental scientific research’ or ‘freedom of scientific re-search’, constantly sent large number of ‘research vessels’ or ‘fishing fleets’ equippedwith electronic devices into the coastal waters of other countries or beneath those watersfor the sole purpose of carrying out espionage activities.”21 China particularly criticizedthe proposal made by the Soviet bloc22 and regarded it as unacceptable.

China’s position reflected its attitude towards the four Geneva Conventions on the Lawof the Sea. None of them were recognized or ratified by China. Although it was not clear

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whether China accepted the principle of freedom of the seas embodied in the aboveconventions, it was clear that to China, there was no freedom of the seas with regard toMSR. In China’s view, MSR should be governed by the following basic principles:

First, anyone wishing to conduct marine research in the sea area within thenational jurisdiction of another coastal State must obtain the prior consent ofthat State and observe its relevant laws and regulations. Secondly, a coastalState had the right to take part in any scientific research carried out by othercountries in the sea area under its national jurisdiction and to obtain the dataand results thereof. Such data and results could not be published or trans-ferred without the prior consent of the coastal State concerned. Thirdly, ma-rine research in the international sea area beyond national jurisdiction shouldbe subjected to regulation by the international regime and international ma-chinery to be established. Fourthly, all States should promote internationalco-operation in marine research and actively assist the developing countriesto enhance their capability to conduct marine research independently, on thebasis of mutual respect for sovereignty and equality and mutual benefit.23

For MSR in the EEZ, China preferred tight control by the coastal state. As empha-sized by the Chinese delegate at UNCOLS III,

[i]f the coastal State did not have the right to protect, use, explore and ex-ploit all the natural resources in the zone, to adopt the necessary measures toprevent those resources from being plundered, encroached on, damaged orpolluted, and to exercise over-all control of the marine environment andscientific research and regulate them, there was no point in speaking aboutfull sovereignty over resources.24

To China, it was essential to provide in the LOS Convention that “the coastal Statesshould have ‘exclusive jurisdiction’ in regard to marine scientific activities in their eco-nomic zones and that express consent should be obtained for such activities.”25

The LOS Convention

Part XIII of the LOS Convention (6 sections, 28 provisions) deals with MSR. While theviews of the developing countries, including China, regarding the MSR in the EEZ wereadopted and incorporated into the convention, the LOS Convention as a whole was a“package deal” balancing different interests of the world community. The LOS Conven-tion recognizes the right of all the States and competent international organizations toconduct MSR in accordance with the convention.26 MSR, which benefits humankind,should be promoted, and international cooperation in this respect is to be undertaken.The conduct of MSR should follow the four principles:

1. MSR should be conducted exclusively for peaceful purposes;2. MSR should be conducted with appropriate scientific methods and means com-

patible with the LOS Convention;3. MSR should not unjustifiably interfere with other legitimate uses of the sea

compatible with the LOS Convention and should be duly respected in the courseof such uses; and

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4. MSR should be conducted in compliance with all relevant regulations adoptedin conformity with the LOS Convention including those for the protection andpreservation of the marine environment.27

The LOS Convention allows for different regulations regarding MSR conducted indifferent sea zones. Within the territorial sea and internal waters, the adjacent coastalstate has the exclusive right to regulate, authorize, and conduct MSR. Thus, only withthe express consent of the coastal state can MSR be conducted by foreigners in thesewaters.28

For the EEZ and the continental shelf, the adjacent coastal state has the right toregulate, authorize and conduct MSR, and MSR undertaken by foreigners should beconducted with the consent of the coastal state.29 It is noted that the term “expressconsent” does not appear respecting MSR undertaken by foreigners in the EEZ andcontinental shelf. This is because the legal status of the EEZ and the continental shelf isdifferent from that of the territorial sea and internal waters in that the coastal state canonly exercise sovereign rights over its EEZ and continental shelf, and not full sover-eignty. However, there are a number of requirements set out in the LOS Conventionwhich protect the interest and legitimate rights of the coastal state regarding MSR. Whilethe coastal state should grant its consent for MSR projects by other states or competentinternational organizations in normal circumstances, and such consent should not bedelayed or unreasonably denied, the coastal state retains the right to withhold its consentto the conduct of an MSR project if that project:

1. is of direct significance for the exploration and exploitation of natural resources,whether living or non-living;30

2. involves drilling into the continental shelf, the use of explosives or the introduc-tion of harmful substances into the marine environment;

3. involves the construction, operation or use of artificial islands, installations andstructures referred to in articles 60 and 80;

4. contains information communicated pursuant to article 248 regarding the natureand objectives of the project which is inaccurate or if the researching State orcompetent international organization has outstanding obligations to the coastalstate from a prior research project.31

The foreign-related MSR projects in the EEZ and on the continental shelf of a coastalstate should be carried out “exclusively for the peaceful purposes and in order to in-crease scientific knowledge of the marine environment for the benefit of all mankind,”32

and should not unjustifiably interfere with activities undertaken by a coastal state in theexercise of its sovereign rights and jurisdiction under the LOS Convention.33

The researching state or international organization bears the duty to comply withthe conditions to conduct its MSR. First, the research conductor has the duty to provideto the coastal state detailed information on the MSR to be conducted in the EEZ or onthe continental shelf of the coastal state not less than six months in advance.34 Second,the conductor has the duty to comply with the following conditions as set out in Article249(1) of the LOS Convention:

(a) ensure the right of the coastal State, if it so desires, to participate or berepresented in the marine scientific research project, especially on boardresearch vessels and other craft or scientific research installations, when

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practicable, without payment of any remuneration to the scientists of thecoastal State and without obligation to contribute towards the costs ofthe project;35

(b) provide the coastal State, at its request, with preliminary reports, as soonas practicable, and with the final results and conclusions after the com-pletion of the research;

(c) undertake to provide access for the coastal state, at its request, to alldata and samples derived from the marine scientific research project andlikewise to furnish it with data which may be copied and samples whichmay be divided without detriment to their scientific value;

(d) if requested, provide the coastal state with an assessment of such data,samples and research results or provide assistance in their assessment orinterpretation;

(e) ensure, subject to paragraph 2, that the research results are made inter-nationally available through appropriate national or international channels,as soon as practicable;

(f) inform the coastal State immediately of any major change in the re-search programme;

(g) unless otherwise agreed, remove the scientific research installations orequipment once the research is completed.36

The application for an MSR project should be submitted to an appropriate official de-partment of the coastal state and follow the relevant guidelines established by competentinternational organizations. States and international organizations are to be responsibleand liable for any damage to the marine environment arising out of MSR undertaken bythem or on their behalf.

The coastal state has the right to require the suspension or cessation of any MSRactivities in case of any noncompliance with the provisions in Articles 248 and 249 ofthe LOS Convention.37 On the other hand, the coastal state should not impose excessivemeasures beyond those authorized under the LOS Convention, otherwise the coastalstate may be responsible and liable for them and be required to provide correspondentcompensation.38

The LOS Convention does not define MSR.39 However, since “survey activities,”“prospecting,” and “exploration” are primarily dealt with in other parts of the LOS Con-vention,40 these activities can be considered not to fall under the Part XIII MSR re-gime.41 Furthermore, hydrographic surveying and marine archaeological research are ac-tivities subject to a separate legal regime.42 Some scholars distinguish fundamentalMSR from applied MSR in terms of application of the LOS Convention: consent for theformer is to be granted in normal circumstances, while the latter is subject to the coastalstate’s full discretion.43 This distinction does not seem to provide any help in clarifyingthe situation; instead the distinction itself causes problems since there is no clear-cutdemarcation of MSR as fundamental or applied. While the ambiguity of the MSR defi-nition may cause problems for researching States, it has little adverse impact on coastalstates since coastal states have enormous discretionary power to decide whether an MSRis acceptable or not under Article 246 of the LOS Convention.

It should be noted that pursuant to the LOS Convention, MSR activity cannot con-stitute the legal basis for any claim to any marine area or resources.44 In practice, how-ever, countries tend to maximize their use of evidence, including MSR activities, tojustify territorial claims to a particular sea area or resources.

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The LOS Convention MSR regime focuses mainly on MSR in the EEZ and on thecontinental shelf. The demand of coastal states at UNCLOS III to control MSR activitiesin their jurisdictional waters was adopted in the LOS Convention, and the legal regimeadopted is based on the consent of the coastal states which clearly favor these states.45

State Practice

Many coastal states have enacted laws and regulations relating to MSR. The UN Officeof Ocean Affairs and the Law of the Sea once compiled a collection of such laws andregulations.46 On examination of the various laws and regulations contained in the UNcollection, it can be seen that some of the countries have simply provided for their rightto regulate MSR within their jurisdictional waters. Only a small number of countrieshave detailed regulations on MSR. Out of 103 countries surveyed in the UN compila-tion, only 23 countries have MSR regulations. Most countries have endorsed the consentsystem provided for in the LOS Convention. In some cases the legal provisions in na-tional laws are virtually copied verbatim from the relevant provisions of the LOS Con-vention.47 For some developing countries, the emphasis is on the exercise of their rightsover MSR in their jurisdictional waters. It has been noted that the laws of African stateson MSR “do not reflect the balance achieved between the interests of coastal and otherstates in the LOS Convention but emphasize instead the exclusive jurisdiction of coastalstates.”48 Some Asian countries follow the LOS Convention closely, as seen in the lawsof Indonesia and the Maldives49 and that of South Korea.50 Among the Latin Americancountries, Mexico enacted its Regulations for the Conduct of Scientific Research byForeigners in Marine Areas under National Jurisdiction in 199351 based on the consentregime created in the LOS Convention.

One country which has a unique legal practice respecting MSR is the United States.According to the relevant regulations, the United States promises not to exercise na-tional jurisdiction over foreign MSR within its EEZ with the result that foreign nationalsor vessels do not require permission to undertake MSR in the U.S. EEZ.52 However, theUnited States applies the consent system to the MSR on its continental shelf and withinits territorial sea because it is a party both to the 1958 Convention on the ContinentalShelf and the 1958 Convention on the Territorial Sea.53 It is not clear whether the UnitedStates will change its position if it ratifies the LOS Convention.

Apart from legislation, the enforcement of the MSR regulations differs in degrees indifferent countries. The divergent views expressed in the UNCLOS III on MSR continueto be reflected in state practice. Canada established the Foreign Vessel Clearance Com-mittee composed of various federal ministries to implement its 1983 MSR regulations.54

Similarly, in 1990 Mexico created a Working Group to evaluate foreign MSR applica-tions composed of representatives from numerous government departments, the NationalScience and Technology Council, and the National Autonomous University of Mexico.55

During the period between 1976 and 1993, Mexico approved 279 foreign MSR applica-tions, and out of them, 258 approvals (almost 93%) were granted to U.S. institutions.56

Two German scholars reviewed the state practice that arose regarding German re-search cruises.57 According to their survey, the German research vessels met a numberof difficulties. Egypt, for example, imposed very restrictive conditions for granting con-sent by requiring: (1) the handling over of all samples of soil and minerals taken fromthe soil and subsoil, intact and prior to laboratory analysis, in addition to sharing of allsamples of other kinds; (2) the provision of the original computer tapes on the researchresults to Egypt; and (3) the request for prior Egyptian consent to any publication of the

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research results.58 Consent was not obtained from India, Saudi Arabia, Somalia, Ethiopia,or PDR Yemen, although consent was obtained from the Sudan despite the fact thatSudan had no pertinent legislation on MSR.59 The experiences of the German researchvessels revealed that the MSR regulations, in particular of the developing countries andas regards consent, are stringent, even though the LOS Convention urges States to pro-mote and facilitate MSR in their jurisdictional waters.

While many national laws and regulations are designed to promote MSR activities,some stipulations are criticized as excessive and burdensome for foreign MSR activities.Vargas has offered the case of Mexico to illustrate. As noted above, Article 248 of theLOS Convention contains six basic components of information the researching stateshould provide to the coastal state, but the listing of the Mexican government contains122 requested information items.60 Such “special requirements” may cause a problem-atic, unpredictable, and costly situation for foreign institutions engaging in MSR activi-ties offshore Mexico. Vargas has commented: “There is no doubt that these additionalrequirements support the claim that the government of Mexico rather than promotingand facilitating the conduct of MSR activities, as provided by the 1982 Convention, ismore interested in restricting the said activities.”61 As a result of the perceived excessesof some states respecting MSR requirements, U.S. government officer has recommendedthe establishment of a “Freedom of MSR Program” analogous to the Freedom of Navi-gation Program to challenge excessive state regulations and practices and encouragefreedom of MSR and compliance with the LOS Convention.62 It is not clear whether theimplementation of this suggestion would have a positive result (minimizing excessiverequirements) or a negative result (leading states to even more tightly control consent).

Chinese Regulations on MSR

The earliest case in which China exercised jurisdiction over a foreign scientific vesselcan be traced back to 1883, when a German vessel attempted to conduct a marine sur-vey in the South China Sea. As a result of China’s protest, the German vessel cancelledits plans and withdrew from the South China Sea.63 It is unknown what laws the ChineseGovernment invoked to force the withdrawal of the German vessel.

At present, MSR is usually managed by three main bodies under the State Council:the Chinese Academy of Sciences (with six MSR-related institutes), the State OceanicAdministration (SOA) (with five MSR-related institutes), and the Ministry of Education(with various university MSR-related departments). In 1996, China promulgated the Reg-ulations on the Management of Foreign-Related Marine Scientific Research (hereinafterreferred to as the MSR Regulations).64

Relevant Laws for MSR

Before 1996, there were no specific regulations regarding MSR in China. However,some legal provisions were scattered in various laws and regulations governing othermatters. For example, the 1992 Law on the Territorial Sea and the Contiguous Zonecontained provisions on MSR which stipulated that “[a]ll international organizations,foreign organizations or individuals shall obtain approval from the Government of thePeople’s Republic of China for carrying out scientific research, marine operations orother activities in the territorial sea of the People’s Republic of China, and shall complywith the laws and regulations of the People’s Republic of China.”65 The 1986 Law ofFisheries contains Article 4, which provides that: “The state shall encourage research in

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fishery science and technology and popularisation of advanced technology in order toraise the level of the country’s fishery science and technology.”66 The 1993 Implementa-tion Regulations on Protection of Aquatic Wildlife provides that Chinese governmentsand departments concerned should encourage and support scientific research of aquaticwildlife done by the scientific research units and teaching units concerned.67 The 1986Law on Mineral Resources provides that the state should encourage scientific-technicalresearch on the exploration and development of mineral resources, popularize advancedtechnology, and raise the scientific-technical level of mineral exploration and develop-ment.68 The Surveying and Mapping Law promulgated in 1992 encourages the enhance-ment of scientific and technological research in surveying and mapping69 and containsprovisions on foreign involvement in surveying and mapping in the sea areas withinChina’s jurisdiction,70 and is relevant to the 1996 MSR Regulations. The final importantlaw is the Law on the Exclusive Economic Zone and the Continental Shelf, which waspromulgated in 1998 after the enactment of the MSR Regulations. This 1998 Law di-rects that the rights of a coastal state granted by the LOS Convention includes jurisdic-tion over MSR in the EEZ and the continental shelf.71 It further provides that “anyinternational organization, foreign organization or individual shall obtain approval fromthe competent authority of the People’s Republic of China for carrying out marine scien-tific research in the exclusive economic zone and the continental shelf of the People’sRepublic of China, and shall comply with the laws and regulations of the People’s Re-public of China.”72

The above provisions can be grouped into three categories: (1) those encouragingscientific research in resources exploration and development are mainly relevant to Chi-nese research institutions and/or individuals, though they may bear some relevance toforeign research institutions; (2) those contained in the laws on the territorial sea or EEZare directly relevant to foreign research institutions and individuals; and (3) those in thelaw on surveying and mapping embody the above two characteristics.

The 1996 MSR Regulations

The promulgation of the MSR Regulations should standardize the foreign MSR approvalprocedure in China and thus avoid the previous fragmented system.73 The purposes ofthe MSR Regulations, as set out in Article 1, are to improve the management of foreign-related MSR activities in the sea areas under China’s jurisdiction, to promote interna-tional exchange and cooperation in marine scientific research, and to safeguard the state’ssecurity and its maritime rights and interests. The Regulations apply to the conduct byinternational organizations or organizations and individuals of any foreign country ofsurvey activities and research on marine environment and marine resources in the inter-nal sea, territorial sea and other sea areas under China’s jurisdiction74 using ships orother vehicles or facilities.

There are four main elements of the 1996 MSR Regulations.

1. MSR should be conducted for peaceful purposes and carried out in a mannerthat shows respect for China’s sovereignty and jurisdiction and it should notdisturb the normal order at sea, nor bring harm to China’s security and maritimeinterests.

2. The party to conduct MSR may be an international organization or a foreigninstitution or individual. The regulations are not applicable to MSR conductedsolely by Chinese institutions.

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3. Only MSR “at sea” is subject to the governance of the regulations. MSR con-ducted in a laboratory or on land is not subject to the regulations.

4. The MSR covered under the 1996 regulations does not include marine investi-gations provided for in other laws and regulations, such as the above-noted Lawon the Mineral Resources, the Regulations on the Exploitation of Offshore Pe-troleum Resources in Cooperation with Foreign Enterprises, Law on Fisheries,and Law on the Protection of Wildlife.75

The competent administrative authority of China for marine affairs, i.e., the SOA,and the agencies or associated agencies that share its mandate, are responsible for themanagement of foreign-related MSR activities in the sea areas under China’s jurisdic-tion. The SOA has branches for the Bohai Sea and the Yellow Sea, the East China Sea,and the South China Sea. Other departments concerned with MSR activities, such as theMinistry of Foreign Affairs, the Ministry of Agriculture, the Ministry of Land Resources,the National Environmental Protection Administration, and the State Meteorological Bureau,should, as required by their responsibilities defined by the State Council, participate inthe management of foreign-related MSR activities in the sea areas under China’s juris-diction in cooperation with the SOA.

MSR in China’s Jurisdictional Waters

In the 1996 regulations, MSR in the internal waters and territorial sea and MSR in theEEZ and/or the continental shelf are treated differently. Article 4 of the MSR Regula-tions provides that the MSR activities by the foreign party in China’s internal watersand territorial sea should be carried out in cooperation with the Chinese party. In othersea areas under China’s jurisdiction, the foreign party may conduct such activities byitself or in cooperation with the Chinese party. Any MSR activities conducted by theforeign party alone or in cooperation with the Chinese party require approval from theSOA or from the State Council through the SOA.

The requirement that no foreign-related MSR projects be conducted within China’sinternal waters and territorial sea unless they are jointly conducted with Chinese partnersis much stricter than that found in some states. For example, the Mexican regulationssimply stipulate that the foreign-related MSR activities, whether in internal waters andterritorial sea or in the EEZ and continental shelf, are subject to the approval of theMexican competent authorities.76 As noted above, there is no question regarding a coastalstate’s exclusive jurisdiction over foreign-related MSR activities in its internal watersand territorial sea.

As for MSR in China’s EEZ or on its continental shelf, projects may be carried outthrough joint efforts between foreign and Chinese collaborators or by foreign scientistsalone. The application and review procedures and the management of research materials,samples, and results are different from those for MSR activities in the internal watersand territorial sea. In its explanation of the 1996 MSR Regulations, the SOA noted thatMSR projects in the EEZ or on the continental shelf should be granted consent unlessthe proposed project exceeds the category of scientific research or it is inconsistent withthe relevant provisions of the LOS Convention.77

As to the application procedure, all applications are to be submitted to the SOA.There are two forms. For MSR activities to be conducted jointly by foreign and Chineseparties, the Chinese party is responsible to apply to the SOA in writing for approval sixmonths prior to the scheduled commencement of the activities and is to attach to their

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application a research plan and other relevant materials. For MSR activities to be con-ducted by a foreign party alone, the foreign party should, through diplomatic channels,apply to the SOA in writing for approval and should attach a research plan and otherrelevant materials six months prior to the scheduled commencement of the researchactivities.

Once the SOA has received an application for MSR activities, it is to examine theapplication together with the Ministry of Foreign Affairs, the competent military au-thorities, and other relevant departments under the State Council and should, withinfour months after the date of receiving the application, decide whether to approve ordisapprove, or to submit the case with comments to the State Council for a final deci-sion. Applications which concern potential MSR activities in the disputed sea areas, orwhich give rise to concerns of national security, or which concern certain river mouthareas, are the ones to be handed over to the State Council for a final decision.78

There are several principles guiding the review and decision-making process re-specting the MSR application:

1. State sovereignty and maritime rights and interests are to be safeguarded. For-eign policy and national defence, whether the application involves explorationfor natural resources, construction and use of artificial installations, or use ofexplosives or drilling, are to be considered during the review process.

2. The marine environment and its resources are to be protected. Any applicationshould contain an assessment of environmental impact and the necessary mea-sures to be taken so as to ensure that no harmful substances are introduced intothe marine environment or cause environmental damage.

3. MSR activity should not hamper other ocean operations such as transportation,fishing, oil and gas exploitation, laying of cables and pipelines, etc.

4. International exchanges and cooperation of MSR should be promoted and foreign-related MSR projects should benefit China and the whole of humankind.79

Based on the above principles, the SOA can approve the application or approve it withrequests for certain deletion or modifications in the application, or it can reject the appli-cation. It is unclear whether the SOA will give detailed reasons for a rejection decision.

Once a plan for MSR activities is approved, the applicant is to submit for approvalto the SOA a detailed ship operational plan two months prior to the commencement ofeach cruise. The SOA is to approve or disapprove the operational plan within one monthfrom the date of receiving the plan and notify the applicant of its decision in writing andinform the relevant departments under the State Council of the matter.80 The main con-tents which are subject to the review of the SOA include: (a) whether the vessel and itsequipment correspond to the MSR activities approved to be undertaken; (b) whether thepositioning of the cruise plan is suitable; (c) whether the time in the proposed MSR planis suitable for the proposed MSR investigation; and (d) whether the investigation wouldbe in conflict with other activities at sea.81 The SOA has the right to require the appli-cant to supplement or modify the vessel operational plan as necessary. Once the SOAhas approved the vessel operational plan, it is to inform the Ministry of Communica-tions of the foreign vessel, its plan, and other related information. For foreign MSRvessels, they are to comply not only with the MSR Regulations, but also with all rel-evant Chinese laws and regulations concerning foreign vessels and their navigation inChina’s waters.

The two-step approval procedure, one for the MSR application and the other for the

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vessel operation plan, may complicate foreign-related MSR and discourage foreignersfrom conducting MSR in China’s jurisdictional waters. However, once the MSR appli-cation (step 1) has been approved, it is unlikely that its associated vessel operationalplan would be rejected. The most likely situation would be that the SOA, if it finds anyunsatisfactory items in the operational plan, would impose corrective conditions such asrequesting additional materials, modification, or postponement of the plan, rather thanreject it.

Prior authorization from the SOA is required for any “major change” to the ap-proved MSR and the ship operational plan.82 As a generality, MSR conductors shouldnot change the approved plans without the consent of the SOA or do something beyondthe approved plans. However, the regulations only provide that a “major change” issubject to the approval of the SOA, thus minor changes in the MSR or vessel opera-tional plan do not require SOA approval. However, there is no definition of what a“major change” is,83 with the result that the ambiguity may cause implementation prob-lems for approved MSR plans and vessel operational plans. Where an approved MSRactivity or the ship operational plan at sea cannot be carried out due to force majeure,this is to be reported immediately to the SOA, although activities may be altered untilthe force majeure disappears.84 The term force majeure may be understood in a commonlegal sense, though there is no definition of it in the regulations.

During the MSR activities, the foreign and, where collaboration exists, the Chineseparties are to be aware of the necessity to protect the Chinese marine environment. Noharmful substances are to be introduced into the marine environment, and without au-thorization, no drilling operations or operations with explosives are to be conducted.85

This requirement is consistent with Article 246 (5)(b) of the LOS Convention in termsof MSR in the EEZ and on the continental shelf, which provides that a coastal state hasthe right to withhold its consent if a proposed MSR project could introduce damage toits marine environment. Even for those approved drilling or explosion operations, theMSR conductors should exercise due diligence with adequate measures to minimize anyharm to the marine environment or marine resources.

The MSR Regulations have established a reporting system for foreign MSR vesselsin China’s waters. It is stipulated that in jointly conducted MSR activities in China’sinternal sea or territorial sea using a foreign research vessel, the positions and activitiesof the ship are to be reported to the SOA twice daily. If MSR activities are conductedby a foreign party alone or in cooperation with the Chinese party in other sea areasunder China’s jurisdiction using a foreign research vessel, the position and activities ofthe vessel involved are to be reported to the SOA daily.86 The report is to contain theposition of the vessel, the movement of the vessel until the next report, operationalinformation, and other related information. The purposes of the reporting system aretwofold: the Chinese authorities need to know where the vessel is and be able to inspectit easily, when necessary; and the regular contact can enable the research vessel to gettimely assistance if it meets with difficulties.87

The SOA, its agencies, or the associated agencies within its mandate may monitoror board a foreign research vessel for inspection. An inspection is usually carried out bythe China Marine Surveillance division under the SOA and is aimed at determiningwhether the MSR activity is being conducted in accordance with the approved plan;whether the vessel has done something inconsistent with the approved plan or irrelevantto the MSR activity, and whether there is any breach of the MSR Regulations or otherChinese laws and regulations.88 Moreover, after the completion of MSR activities a for-

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eign research vessel is subject to inspection before its departure from Chinese waters tocheck whether the vessel conforms to Chinese laws and regulations should the vesselwish to take away any original MSR materials and samples, whether the foreign partyhas accomplished its duties, and whether a breach of law, if it occurred, has been dealtwith by the relevant Chinese authority.89 This kind of inspection is regarded as a practi-cal reflection of China’s sovereignty and jurisdiction, safeguarding the state’s dignityand interest as well as the normal operation of the MSR activities.90

Sharing of Scientific Results

How to share and/or divide MSR results is a complex problem in the MSR legal regime.The Chinese regulations provide that any raw data and original samples obtained fromMSR jointly conducted by a Chinese and a foreign party in China’s internal sea andterritorial sea belong to China,91 although the foreign party may use them in accordancewith any agreement entered into as part of the joint research. As for the raw data andoriginal samples obtained from MSR activities conducted jointly by the Chinese andforeign parties in other sea areas under China’s jurisdiction, the materials are to beshared and used free of charge by both sides in accordance with any agreement enteredinto as part of the joint research, provided that the relevant Chinese laws, statutes, andregulations are not violated.92 The raw data and original samples obtained in MSR ac-tivities conducted by a foreign party alone may be used free of charge by the relevantChinese organizations and duplicates and separable samples are to be supplied to theSOA free of charge.93 It can be seen that the sharing and distribution of scientific resultsobtained from China’s internal waters or territorial sea may be regarded as too restric-tive and unacceptable. However, since MSR projects in China’s internal waters andterritorial sea are only to be conducted jointly by both foreign and Chinese parties, theChinese regulations may have some reasonable justification. The MSR results from China’sEEZ and continental shelf can be shared between the foreign and Chinese party throughbilateral agreements provided that such sharing does not violate other Chinese laws andregulations.94 The above provisions are very general and many problems remain to beworked out respecting how to share materials, how to keep appropriate materials confi-dential, and how to share the intellectual property rights of the MSR materials betweenforeign and Chinese parties.

More serious problems may occur when Article 10 of the MSR Regulations comesto be implemented:

No raw data and original samples obtained from the MSR activities con-ducted in the sea areas under China’s jurisdiction should be published ortransferred by the foreign and Chinese parties involved or by the foreignparty alone without the consent of the SOA and other relevant departmentsunder the State Council.

It is obvious that this provision is both too restrictive and inconsistent with the relevantprovisions of the LOS Convention, which obliges the signatory states to make availableby publication and dissemination information on and knowledge resulting from MSRand to actively promote the flow of scientific data and information.95

After the completion of any MSR activities conducted jointly, the Chinese party is tosend a copy of the research results and a list of data to the SOA and other relevant

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departments under the State Council. When the foreign party has completed its solelysponsored MSR activities, it has the obligation to provide the SOA with data or duplicatesof data and samples or separable samples obtained from these activities, and it is to alsoprovide, in a timely fashion, the phased research results and the final results and conclusionof the research.96 The management system for these provisions needs further improvementand could include the establishment of a center in the SOA to keep and maintain thescientific materials and samples submitted by the foreign party.

Legal Liability

The MSR Regulations provides for two kinds of legal liability: administrative liabilityand criminal liability. For the former, it is stipulated that in a case of any violation ofthe MSR Regulations, the SOA or its agencies or the associated agencies that share itsmandate may order the conductor to stop its activities and may confiscate all the re-search instruments and equipment involved, the data and samples obtained, and/or im-pose a fine of up to RMB 50,000.97 Specific activities which will be considered to be aviolation of the MSR Regulations are set out in the Notice on the Law EnforcementSupervision for the Foreign-Related Marine Scientified Research issued in 2000:98

1. conduct of MSR in China’s jurisdictional waters without permission;2. breach of Article 7(1) of the regulations in revising the MSR plan without

consent;3. breach of Article 7(1) of the regulations in bringing on board scientific equip-

ment and apparatus inconsistent with the original MSR plan;4. breach of Article 8 of the regulations in drilling or introducing harmful sub-

stances into the marine environment;5. breach of Article 9(1) of the regulations in failing to report the location of the

MSR vessel;6. breach of Articles 9(2) and 11 of the regulations in refusing an inspection or

deceiving the inspection personnel during inspection;7. breach of Article 10(4) of the regulations in publishing or transferring MSR

original materials and samples without the consent of SOA or other Chinesegovernmental departments;

8. breach of Article 10 (1)(2) of the regulations in failing to provide China theMSR original materials or samples, or the Chinese partner failing to ask forthe original materials and samples from its foreign partner;

9. breach of Article 12(1) of the regulations in failing to submit the inventory ofthe MSR materials and samples to the SAO for record by the Chinese MSRpartner within one month, or final result of the MSR project within one year;and

10. breach of Articles 10(3) and 12(2) of the regulations in failing to provide tothe SOA the copies of the materials and dividable samples by the foreignparty, and failing to submit the research results to the SOA within one year.

As to criminal liability, the regulations provide that “those who have constituted acrime as a result of violating the MSR Regulations and consequently caused significantlosses and serious consequences should be investigated for criminal liabilities accordingto relevant laws.”99 The SOA has no competence in this regard. The Chinese judiciaryimposes punishment for criminal liability.

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Implementation of the MSR Regulations

To assist in the implementation of the MSR Regulations, the SOA issued the Notice onthe Law Enforcement and Supervision for the Foreign-Related Marine Scientific Re-search on 16 May 2000.100 The notice is designed to further safeguard China’s sover-eignty and marine rights and interests, to strengthen the supervision of foreign-relatedMSR in China’s jurisdictional waters, and to handle illegal acts and law offenders. Ac-cording to the notice, the China Marine Surveillance division has been entrusted withthe responsibility to manage the law enforcement supervision for foreign-related MSR.The China Marine Surveillance division was first established in 1983 and has been graduallyexpanded. At present, it consists of the headquarters located in Beijing, the North SeaBrigade, the East China Sea Brigade, and the South China Sea Brigade, and other sur-veillance teams formulated by relevant coastal provinces.101 It monitors China’s jurisdic-tional waters and enforces Chinese laws and regulations in respect of China’s marinerights and interests, use of sea areas, marine environment, and resources. Inspection offoreign-related MSR activities is a newly added mandate for the China Marine Surveil-lance division.

The supervision and inspection of MSR activities includes two forms: inspection atsea (surveillance and inspection at sea including on board inspection) and inspection onland (inspection in harbor and inspection of a Chinese unit which is involved in a for-eign-related MSR project). The different brigades are to prepare the inspection scheme,which is to contain the following points: basis of the law enforcement; main inspectionareas and contents; organization and distribution of the inspection work; time, location,method, and concrete measures for inspection; and safeguarding conditions and require-ments.102 Foreign research vessels should begin to report to the Chinese authorities theirlocation and activities from the time they enter Chinese waters. Failure to do so willresult in the China Marine Surveillance taking the following measures: (a) notifyng theChinese partner of the MSR project and asking it to urge its foreign partner to fulfill itsobligation; (b) communicating directly with the foreign vessel to ask it to fulfill thereporting duty; (c) checking the activities of the foreign vessel by the Marine Surveil-lance; or (d) suspending the MSR activities if the matter gets serious.103

Different treatment is accorded to the foreign vessel in different sea zones. TheChina Marine Surveillance may inspect a foreign vessel which is going to or is alreadyconducting MSR activities in China’s internal waters and territorial sea; however, anyinspection of a foreign vessel which conducts MSR in China’s EEZ or continental shelfis to be approved by the SOA, who should show that there is a necessity for such aninspection.104 A foreign vessel is always subject to inspection before its departure fromChina’s jurisdictional waters.

One reported application of the MSR Regulations arose in April 2000 when theFifth Branch of the China Marine Surveillance Brigade went on board the Americanscientific vessel Roger.105 The vessel was inspected: (a) to verify the seaworthiness ofthe vessel and the scientific equipment and personnel (based on Article 5 of the regula-tions); (b) to verify the operations of marine investigation conducted by the vessel inthis cruise (based on Article 7 of the regulations); and (c) to verify the joint use of theoriginal materials and samples obtained in the cruise of the vessel (based on Article 10of the regulations). The inspection was smoothly conducted and the inspector and theinspected signed the inspection document upon completion of the inspection. The in-spection highlighted that the ship’s crew were unaware of the MSR Regulations. Theinspection team suggested adopting more detailed implementing measures, but there is

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also a need for China to publicize the regulations more widely. A similar situation oc-curred when the China Marine Surveillance inspected the Pacific Supplier, a Singaporeanregistered survey vessel, between 31 August and 12 September 2000.106

In addition to inspection visits, China has formulated a practice of placing inspec-tors on board foreign research vessels for a short period. For example, between 24October and 16 November 2000, the China Marine Surveillance stationed an inspectoron board the Korean research vessel, the Ocean Explorer II, during the whole time thevessel was conducting its marine scientific investigation in the East China Sea. This on-board stationing was seen as being effective for MSR inspection and was recommendedas a means for future MSR inspection.107

In 2000, China launched a large-scale program of inspection of foreign-related MSRactivities. It was organized by the SOA and carried out by the China Marine Surveil-lance.108 The program was aimed not only at foreign research vessels in China’s jurisdic-tional waters, but also at Chinese scientific institutions, which had joint MSR projectswith their foreign partners.109

There are several reasons behind China’s decision to launch a large-scale inspectioncampaign on foreign-related MSR activities. First, it was seen as necessary in order todemonstrate China’s seriousness in implementing the 1996 MSR Regulations. Second,breaches of the regulations were often due to lack of knowledge of the regulations,which a concentrated campaign of inspection could reverse. Third, there was the viewthat some countries sought to collect materials from China’s offshore marine environ-ment using questionable means and with questionable intentions.110

Issues and Prospects

Despite the fact that China has enacted and implemented laws and regulations concern-ing the MSR, there are still a number of issues to be resolved. Some result from theMSR Regulations themselves, some from the ambiguity in the LOS Convention, andsome are caused by other factors.

Inconsistency

As pointed out above,111 China’s regulations on the publication of scientific data are notconsistent with the relevant provisions of the LOS Convention. According to the regula-tions, when there is a discrepancy between the regulations and any of the relevant inter-national treaties to which China is a party, that treaty is to prevail in application.112 SinceChina has acceded to the LOS Convention, the relevant provisions in the LOS Conven-tion on MSR are applicable in China; thus, where there is a discrepancy between therelevant provisions of the LOS Convention and the MSR Regulations, the provisionsof the LOS Convention should prevail. Despite the provision of the regulations givingsuperiority to the LOS Convention, overriding those provisions in the MSR Regulationswhich are both clear and inconsistent with the LOS Convention is far from certain.China needs a supplementary rule to clarify the above issue.

Normal Circumstances and Implied Consent

Under the LOS Convention, a coastal state should, under normal circumstances, grantpermission to a foreign-related MSR project to be carried out in its EEZ or on its conti-nental shelf.113 However, the Convention does not define the term “normal circumstances”

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and expounds little on what would or might constitute normal circumstances, except forthe provision that the absence of diplomatic relations between the coastal state and re-searching state does not mean that there exist no normal circumstances.114 The expres-sion “in normal circumstances,” according to one legal scholar, “was regarded as requir-ing the coastal state to apply objective criteria in determining the existence of abnormalcircumstances.”115 According to an explanation by the United Nations, obvious examplesof abnormal circumstances would be a situation of imminent danger of armed conflictor where there was a jurisdictional dispute over the area for which the request for MSRwas being made.116 The question remains whether other “abnormal circumstances” or“non-normal circumstances” exist.

The Chinese regulations do not contain the expression “in normal circumstances.” Itappears that during the MSR applicant review process, the Chinese authorities will con-sider all the relevant factors relating to the MSR application and a decision not to grantpermission would not be limited to the abnormal circumstances above specified. Since1999 China has tightened its review of MSR applications and turned down more appli-cations than in previous years. Since no explicit reason why an application is denied isgiven, China’s withholding of its consent may be criticized by other countries as anexcessive and overly subjective act. Perhaps such an outcome is not surprising, how-ever, given the ambiguity in the wording of the LOS Convention and the “relatively”absolute consent regime endorsed in the treaty which gives to a coastal state the discre-tion to give or not give its consent to an MSR application. Moreover, the outcome is notsurprising in the situation of developing countries with limited knowledge and facilitiesfor MSR. Due to such limitations, these countries may not be sure whether an MSRproject conducted by a developed country within their EEZ and continental shelf wouldbring about a potential threat to their national interest. There also may be suspicionsabout the intentions of a developed country, particularly a powerful one, in conductingMSR in their waters. It is obvious that such subjective considerations are harmful to theprinciple of maximizing the freedom of MSR also encouraged by the LOS Conven-tion.117 Transparency of any MSR proposed by developed countries is necessary to allaythe fears of developing countries as well as to convince them that the MSR projectsconducted within their jurisdictional waters will not harm, but will enhance, their na-tional interest.118

A related issue can be seen in Article 252 of the LOS Convention regarding the“implied consent” that arises where no express consent is granted by the relevant coastalstate for an MSR project conducted within a six month period.119 On this issue, somecountries have incorporated the relevant provisions of the LOS Convention into theirrespective domestic legislation. For example, the Mexican MSR regulations provide thatthe Mexican authorities should notify an applicant of the decision within four months ofthe receipt of the foreign request, and if six months elapse without a decision beingmade, then the Secretariat of External Relations must grant a permit to the foreign appli-cant.120 Although the wording of the Mexican law deviates from that of the LOS Con-vention, it is consistent with the spirit of “implied consent” since the grant of a permit isa requirement after six months from the date when the foreign application was received.Other countries which have incorporated the “implied consent” notion into their MSRlaws are Indonesia, Russia, and Spain.121

As already noted, the Chinese Regulations do not define what a normal circum-stance is, nor do they mention whether the Chinese authority will grant a permit innormal circumstances to a researching state or an international organization. Accordingto Articles 5 and 6 of the MSR Regulations, the Chinese authorities should make its

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decision on whether it approves or disapproves of an MSR application within four months.The issue of “implied consent” is not dealt with in the Chinese Regulations.

Irrespective of the right respecting implied consent that arises in the LOS Conven-tion, as a practical matter research states may not wish to risk relying on such a rightunless the national legislation recognizes its existence. It is worth noting that in the caseof the German research vessel Meteor, Germany chose not to rely on the notion ofimplied consent in two cases where the coastal states did not response to its request.122

MSR in Disputed Waters

The disputed waters between and/or among coastal states often cause problems for MSR.MSR by states involved in an ocean area dispute creates one type of problem and MSRconducted by a third state creates another type of problem. As for the first type ofproblem, although MSR activities do not constitute a legal basis for a claim to any partof the marine environment or its resources pursuant to the LOS Convention,123 coastalstates usually have the intention, whether overtly or covertly, to conduct the MSR in thedisputed waters as a means of consolidating a territorial claim as well as the pure scien-tific pursuits of MSR. Certain MSR activities in the disputed waters can cause seriouspolitical and diplomatic tensions, even a military conflict, between the states concerned.One example can be seen in the 1976 Aegean Sea Continental Shelf Case (Greece v.Turkey) before the International Court of Justice (ICJ) when Greece requested the courtto issue an interim protection measure to suspend the seismic exploration being under-taken by Turkey in the disputed area.124 The court declined the request.

Recently, China and Japan had a dispute over a Chinese scientific research vesselconducting MSR in the East China Sea. Japan accused China of violating Japan’s sover-eignty and maritime interests. China argued that there was no clear boundary delimita-tion between the two countries in the area. However, the two countries agreed on theneed to establish a framework for mutual notification of MSR operations to be con-ducted in the disputed sea areas of the East China Sea.125 Subsequent negotiations led toan agreement on prior notification of any MSR activities in the disputed waters, includ-ing the following main points: (a) notification is to take place two months in advance ofany scheduled MSR activity to be undertaken in the sea area adjacent to the jurisdictionalwaters of the other side; and (b) notification is to include the name of the institution andof the vessel involved in the MSR investigation, the purpose and contents of the investi-gation, and the period of time and the area of the investigation.126 The arrangement is aprovisional measure pending settlement of the maritime boundary between the two states,but it should ease any unnecessary tension resulting from MSR activities.

In terms of MSR by a third state in a disputed waters area, whatever the scientificvalue of the proposed MSR, it is highly likely that a third state would be very reluctantto go ahead with the MSR where to do so would increase tensions. It has been reportedthat an MSR application from the Netherlands to do research in the Aegean Sea wasrejected by Greece because of the dispute between Greece and Turkey over the delimita-tion of the continental shelf.127 Another dilemma a third state would encounter is whichcoastal state it should approach to get the approval for the proposed MSR. The onlyalternative is to apply for consent from both countries concerned. China has receivedand approved some applications for MSR undertaken in the Yellow Sea and the EastChina Sea.128 It is not known whether these applications were concerned with MSRconducted in the disputed or overlapping claimed waters, or whether the third state hadapplied for consent from both China and the other coastal states.

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Bilateral Agreements

Most developing countries, including China, prefer to sign bilateral agreements withrelevant countries for the conduct of MSR within the sea areas of their national jurisdic-tion.129 In the early years, the PRC only signed MSR agreements with its communistcounterparts. After the adoption of the open-door policy and economic reform, Chinabroadened its scope of collaboration within the MSR field. One significant agreement isthe Protocol on Cooperation in the Field of Marine and Fishery Science and Technologysigned between China and the United States, which opened the door of cooperationbetween the two countries in a wide range of MSR activities, including exchange ofdata and information, joint research, and joint sponsorship of international meetings.130

China has also maintained regular agreements on MSR with other countries includingCanada, France, Russia, South Korea, Japan, and Germany. Significant MSR projectsare the Sino-American Joint Research on the Mouth of the Yangtze River and the EastChina Sea Continental Shelf (1980–1983); the Sino-Japanese Joint Investigation of theRed Tide; and Sino-German Joint Research on Geophysics and Geology of the SouthChina Sea.131 China and South Korea established the Joint Research Centre for MarineSciences in May 1995 and launched several joint research projects, in particular on theYellow Sea.132 North Korea is the only developing country which has concluded anMSR agreement with China.133 Not surprisingly, MSR projects arising under bilateralagreements are more easily approved by the Chinese authorities than MSR projects withoutsuch agreements.

In addition, certain MSR projects sponsored by international organizations (e.g. theInternational Oceanographic Organization) of which China is a member are also able toobtain approval easily. Article 247 of the LOS Convention obliges China to generallygrant consent to the international organization of which China is a member for MSRprojects in China’s EEZ and on China’s continental shelf.

Dispute Settlement

The LOS Convention has a comprehensive mechanism of dispute settlement for partystates to resolve their disputes concerning interpretation and application of the LOSConvention. Disputes relating to MSR should be settled in accordance with Part XV,Section Two on compulsory procedures entailing binding decisions and subject to Sec-tion Three on limitations and exceptions to the applicability of Section Two.134 Twoexceptions to the compulsory settlement procedures relating to MSR disputes are re-specting the exercise by a coastal state of a right or discretion under Article 246 con-cerning consent to permit MSR in the EEZ and on the continental shelf and a decisionby the coastal state to order suspension or cessation of a research project in accordancewith Article 253.135 However, a dispute arising from an allegation by a researching statethat a coastal state is not exercising its rights with respect to a specific project in amanner compatible with the LOS Convention can be submitted, at the request of eitherparty, to the compulsory conciliation procedure under the LOS Convention.136 The con-ciliation commission is not to call into question the exercise by a coastal state of itsdiscretion to designate specific areas, as referred to in Article 246(6), or of its discretionto withhold consent in accordance with Article 246(5). Clearly, the provisions in theLOS Convention on the settlement of disputes relating to MSR favor coastal states’authority over MSR. Some writers have viewed this as a weak point of the LOS Con-vention.137

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Conclusion

China’s 1996 MSR Regulations reflect China’s position taken at UNCLOS III, a posi-tion that was largely adopted in the LOS Convention provisions on MSR. Not surpris-ingly, therefore, China’s Regulations on MSR are largely consistent with the relevantprovisions in the LOS Convention. Nevertheless, there are a few inconsistencies whichare likely to cause problems in the implementation of the MSR Regulations.138 There aresome issues which are not covered by the MSR Regulations. For example, the regula-tions do not provide for China to send its scientists on board a foreign vessel in a casewhere the MSR is conducted solely by the foreign party, despite the fact that China hassuch a practice.139 The regulations do not mention whether any artificial installations areto be removed after the completion of the MSR activities as is provided for in Article249 of the LOS Convention. It has been recommended that in order to improve thecurrent MSR legal system, further laws and regulations need to be enacted, such asregulations on the management of marine survey and mapping; measures on the man-agement of marine archives and materials; measures on keeping confidential marinearchives and materials; measures on the management of the quality of marine apparatus;and measures on the management of marine metrology.140

China has encountered problems in implementing the provisions on MSR containedin the LOS Convention due to ambiguity in the provisions, as well as differences instate practice.141 While coastal states, when enacting MSR laws and regulations, have tobear in mind the provisions of the LOS Convention and fulfill their treaty obligation bykeeping their domestic laws in line with the LOS Convention, researching states shouldbe more cooperative and respectful of the consent regime formulated by the LOS Con-vention. The suggestion that a “Freedom of MSR Program” be established to test statepractice in this area142 contains hegemonistic elements and is not recommended. How-ever, there is a need to have a remedy mechanism, in addition to the dispute settlementprocedure, for those cases in which MSR requests are rejected on bases not supportedby the LOS Convention.

In addition, some new issues relating to MSR should be further examined. Forexample, with the broadening of the protection of intellectual property, the issue ofwhether intellectual property protection would hinder the publication of MSR results orin the provision of the MSR results to the coastal state has been raised.143

Accountability and transparency of MSR laws and regulations are also importantand are perhaps a treaty obligation for coastal states under the LOS Convention. SinceChina has enacted the MSR Regulations, China should let the world know of them. It issuggested that China publish a handbook of guidelines for foreigners who seek to con-duct MSR in China’s jurisdictional waters in a manner similar to that of Mexico.144

China fully realizes the importance of MSR in relation to maintaining its maritimerights and interests as well as deriving benefit from use of the oceans and ocean re-sources. China is still a developing country, lacking in research equipment and humanresources. It needs the cooperation of other countries for MSR activities. It remains to bedetermined whether the 1996 MSR Regulations create the appropriate balance betweenChina’s desire to govern MSR activities and its desire to encourage MSR activities.

Notes

1. See Satya N. Nandan, “Introduction,” in United Nations Office for Ocean Affairs andthe Law of the Sea, The Law of the Sea: Marine Scientific Research: A Guide to the Implemen-tation of the Relevant Provisions of the United Nations Convention on the Law of the Sea (NewYork: United Nations, 1991), at vii.

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2. See Luo Yuru and Zeng Chengkui (eds.), Marine Affairs in Contemporary China (Beijing:China Social Science Press, 1985) (in Chinese), at 7–8.

3. “Abundant Fruits of China’s Marine Scientific Research and Investigations,” China OceanNews (in Chinese), 12 October 1999.

4. See Daniel J. Dzurek, “Marine Scientific Research and Policy Issues in East Asia,”Ocean Yearbook, Vol. 9, 1991, 162 and 164 and also see Yann-Huei Billy Song, “Marine Scien-tific Research and Marine Pollution in China,” Ocean Development and International Law, Vol.20, 1989, 601–621.

5. There is abundant literature on China’s marine scientific research. For example, seeBaruch Boxer, “Marine Science in China: Development and Prospects,” Ocean Yearbook, Vol. 6,1986, 217–240.

6. There are a number of Chinese laws and regulations applicable to China’s domesticMSR, such as the 1993 Law on Progress of Science and Technology. These laws and regulationsare not relevant to the governance of foreign-related MSR.

7. Though it is not strictly divided, the book Marine Affairs in Contemporary China con-tains two separate chapters, respectively, dealing with marine scientific investigation and marinescientific research. See Luo and Zeng, supra note 2, at 35–118.

8. The LOS Convention, adopted on 10 December 1982, came into force on 16 November1994. The text is available in 21 ILM 1261. For background information, see Myron H. Nordquistet al (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV(Dordrecht: Martinus Nijhoff, 1991), at 429–466; and United Nations Office of Legal Affairs,Division for Ocean Affairs and the Law of the Sea, The Law of the Sea: Marine ScientificResearch: Legislative History of Article 246 of the United Nations Convention on the Law of theSea (New York: United Nations, 1994).

9. Convention on the Continental Shelf, 499 UNTS 311.10. Article 5 (8) of the Continental Shelf Convention.11. Article 5 (1) of the Continental Shelf Convention.12. See Alfred H.A. Soons, Marine Scientific Research and the Law of the Sea (Deventer,

Netherlands: Kluwer Law and Taxation Publishers, 1982), at 56–57 and see also William T.Burke, Marine Scientific Research and International Law, Occasional Paper No. 8 (Law of theSea Institute, University of Rhode Island, 1970) particularly, at 23-30.

13. Patricia Birnie, “Law of the Sea and Ocean Resources: Implications for Marine Scien-tific Research,” International Journal of Marine and Coastal Law, Vol.10 (2), 1995, at 233–234depicts the debate as follows:

The developing states feared first that the living and especially the non-living resourcesof the sea and sea-bed would be exploited mainly by the developed states and thatsuch states would, moreover, be able, by conducting scientific research, to locate andidentify such resources off the coasts and on the offshore sea-beds of the developingstates to the economic disadvantage of these poorer states. Secondly, they feared thatstricter regulation of all sources of marine pollution now perceived by scientists to benecessary to preserve the “health” of the oceans, which constituted the habitat whichsustained the living resources, would inhibit the industrialization of developing statesand thus their opportunity to develop, although the major sources of marine pollutionwere generated by the developed states.

14. Nordquist, supra note 8, at 434.15. UN Doc. A/AC.13S/SC.III/L.42, 19 July 1973, and see United Nations, “Marine Scien-

tific Research: Legislative History,” supra note 8, at 21. The Working Paper is reprinted in JeanetteGreenfield, China’s Practice in the Law of the Sea (Oxford: Clarendon Press, 1992), at 233.

16. For example, UN Doc. A/AC.138/SC.III/L.55, 17 August 1973. It was a joint proposalon “draft article on consent to conduct marine scientific research” made by China together withAlgeria, Brazil, Ethiopia, Egypt, Iran, Kenya, Pakistan, Peru, Philippines, Romania, Somalia, Trinidadand Tobago, Tunisia, and Yugoslavia. Reprinted in Greenfield, supra note 15, at 233–234.

17. Pi Chi-Lung, 55th Plenary Meeting, 18 April 1975, in United Nations, Third UnitedNations Conference on the Law of the Sea, Official Records, Vol. 4 (New York: United Nations,1975), at 20.

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18. Lo Yu-Ju, 21st Meeting, Third Committee, 17 April 1975, in Official Records, Vol. 4,ibid., at 97.

19. Lo Yu-Ju, supra note 18, at 98.20. Lo Yu-Ju, Second Session, Third Committee, 11 July 1974, in Official Records, Vol. 2,

supra note 17, at 344.21. Ling Ching, Second Session, Second Committee, 7 August 1974, in Official Records,

Vol. 2, supra note 17, at 228.22. A/CONF.62/C/3/L.26, 3 April 1975, reprinted in Soons, supra note 12, at 343–344.23. Lo Yu-Ju, supra note 20, at 344.24. Ling Ching, 24th Meeting, 1 August 1974, in Official Records, Vol. 2, supra note 20,

at 187.25. Lo Yu-Ju, Fifth Session, Third Committee, 14 September 1976, in Official Records,

Vol. 6, supra note 17, at 96.26. Article 238 of the LOS Convention.27. Article 240 of the LOS Convention.28. Article 245 of the LOS Convention.29. Article 246 of the LOS Convention.30. As clarified by the 1991 UN pamphlet, the wording may give rise to different interpre-

tations. But such research projects may generally be considered to be those which can reasonablybe expected to produce results enabling resources to be located, assessed and monitored withrespect to their status and availability for commercial exploitation. See United Nations, “MarineScientific Research: A Guide,” supra note 1, at 12.

31. Article 246 (5) of the LOS Convention. It has been commented that such a broad for-mulation may permit a coastal state to withhold consent for virtually any scientific research project.Dzurek, supra note 4, at 173.

32. Article 246 (3) of the LOS Convention.33. Article 246 (8) of the LOS Convention.34. Article 248 of the LOS Convention.35. According to the 1991 UN pamphlet, “participation” means that one or more scientists

from the coastal state actually work together on the project with the scientists from the research-ing state or competent international organization. “Representation” would refer to the situation inwhich one or more observers appointed by the coastal state are present on board the researchvessel during the project, without actually taking part in the scientific work. United Nations,“Marine Scientific Research: A Guide,” supra note 1, at 16.

36. Article 249 (1) of the LOS Convention.37. Article 253 of the LOS Convention.38. Article 263 (2) of the LOS Convention.39. During UNCLOS III, the Chair of the Third Committee included the following defini-

tion of MSR in the ISNT (Informal Single Negotiating Text), “Marine scientific research meansany study or related experimental work designed to increase man’s knowledge of the marineenvironment.” See Soons, supra note 12, at 123. However, a definition was not included in theadopted LOS Convention. Roach and Smith offer another definition of MSR: “the general termmost often used to describe those activities undertaken in the ocean and coastal waters to expandscientific knowledge of the marine environment and its processes.” They particularly stress thatthe United States accepts this definition. J. Ashley Roach and Robert W. Smith, United StatesResponses to Excessive Maritime Claims, 2nd Edition (The Hague: Martinus Nijhoff Publishers,1996), at 425.

40. For example, see Parts II, III, XI, and Annex III of the LOS Convention.41. See United Nations, “Marine Scientific Research: A Guide,” supra note 1, at 1.42. Alfred H. A. Soons, “The Developing Regime of Marine Scientific Research: Recent

European Experience and State Practice,” in Lewis M. Alexander, Scott Allen, and L.L. Hanson(eds.), New Developments in Marine Science and Technology: Economic, Legal and PoliticalAspects of Change, (22 Law of the Sea Institute Proceedings, 1989), at 302.

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43 See Wolf Plesman and Volker Röben, “Marine Scientific Research: State Practice ver-sus Law of the Sea?” in Rüdiger Wolfrum (ed.), Law of the Sea at the Crossroads: The Continu-ing Search for a Universally Accepted Regime (Berlin: Duncker und Humblot, 1991), at 375.

44 Article 241 of the LOS Convention.45 Some scholars take some rather different views on the consent regime. See Plesmann

and Röben, supra note 43, at 392. They take the view that the LOS Convention provides thatcoastal States’ consent is not necessarily of material importance and that “consent” may be readas “notification. This author is unable to endorse the above view. “Consent” cannot be read as“notification” despite the fact that some countries (the United States, Germany, and Israel) haveimplemented a very lenient MSR regulations over foreign-related MSR activities. The proposal touse notification rather than consent was rejected during the UNCLOS III.

46. United Nations, The Law of the Sea: National Legislation, Regulations and Supplemen-tary Documents on Marine Scientific Research in Areas under National Jurisdiction (New York:United Nations, 1989).

47. See, for example, “Decree of the Union of Soviet Socialist Republics on the EconomicZone of 28 February 1984” and “Regulations on the Procedure for Conducting Marine ScientificResearch in the Economic Zone of the USSR, 1985,” in “National Legislation,” supra note 46, at258–260 and 264–266.

48. Birnie, supra note 13, at 247.49. Birnie, supra note 13, at 247.50. South Korea enacted its Law on Marine Scientific Research on 5 January 1995 and

adopted a Decree to implement that Law on 13 July 1996. For details, see Choung Il Chee,Korean Perspectives on Ocean Law Issues for the 21st Century (The Hague: Kluwer Law Interna-tional, 1999), at 145–146.

51. See Jorge A. Vargas, “U.S. Marine Scientific Research Activities Offshore Mexico: AnEvaluation of Mexico’s Recent Regulatory Legal Framework,” Denver Journal of InternationalLaw and Policy, Vol. 24, 1995, at 6.

52. See “Note to the United Nations of 13 October 1988 on United States Practice Relatingto Marine Scientific Research,” in United Nations, “National Legislation,” supra note 46, at 276.

53. Convention on the Territorial Sea, 516 UNTS 205.54. See Serge April, “La recherché scientifique marine: point de vue canadien,” in Donat

Pharand and Umberto Leanza (eds.), The Continental Shelf and the Exclusive Economic Zone:Delimitation and Legal Regime (Dordrecht: Kluwer Academic Publishers, 1993), at 359–360.The Canadian regulations are reprinted in United Nations, “National Legislation,” supra note 46,at 55–63.

55. Vargas, supra note 51, at 31.56. Ibid., at 28.57. Plesmann and Röben, supra note 43.58. Ibid., at 378.59. Ibid., at 378–379.60. Vargas, supra note 51, at 42.61. Ibid., at 50-51.62. See J. Ashley Roach, “Marine Scientific Research and the New Law of the Sea,” Ocean

Development and International Law, Vol. 27, 1996, at 68. The Freedom of Navigation Programwas established in 1979 and challenges State practices which, according to the United States, areinconsistent with international law, including the LOS Convention, especially the right of inno-cent passage in other countries’ territorial seas. See: G. Galdorisi, “The United Nations Freedomof Navigation Program: A Bridge for International Compliance with the 1982 United NationsConvention on the Law of the Sea?” Ocean Development and International Law, Vol. 27, 1996,300-408.

63. See Zhao Guochai, “Analysing the Sovereignty Dispute over the Spratly Islands fromthe Existing Law of the Sea,” Asian Review (in Chinese), 1999, Spring Issue, at 28.

64. The Regulations on the Management of Foreign-Related Marine Scientific Research are

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reprinted in Gazette of the State Council of the People’s Republic of China (in Chinese), 1996,the English version is reprinted in Office of Law, Policy and Regulation, State Oceanic Adminis-tration (ed.), Collection of the Sea Laws of the People’s Republic of China, Revised Edition(Beijing: Ocean Press, 1998), at 282–288.

65. Article 11 of the Law on the Territorial Sea and the Contiguous Zone, reprinted in ibid.,at 189.

66. Law of Fisheries, reprinted in ibid., at 223.67. Article 4 of the Regulations reprinted in ibid., at 467.68. Article 8 of the Law on Mineral Resources, reprinted in ibid., at 236.69. Article 5 of the Surveying and Mapping Law, reprinted in Office of Law, Policy and

Regulation, ibid., at 254.70. Article 19 of the Surveying and Mapping Law, ibid., at 261–262.71. Article 4 of the Law on the Exclusive Economic Zone and the Continental Shelf. The

author’s translation is available in MIMA (Malaysian Institute of Marine Affairs) Bulletin, Vol. 7(1), 1999, at 27–28.

72. Article 9 of the Law on the Exclusive Economic Zone and the Continental Shelf, ibid.,at 29.

73. Regarding the experiences in MSR management in China before the promulgation ofthe 1996 MSR Regulations, see Lu Shouben (ed.), The Marine Legal System (Beijing: GuangmingDaily Publisher, 1992) (in Chinese), at 224–226. In 1989, China provided the United Nationswith an outline of its practices regarding MSR. See Su Jilan, “Practice of China in RegulatingMarine Scientific Research in Zones Subject to Chinese Jurisdiction,” letter to Satya N. Nandan,Under-Secretary-General, United Nations, 25 August 1989, cited in Dzurek, supra note 4, at 175.

74. The term “other sea areas under China’s jurisdiction” had been often used in Chinesemaritime legislation to refer to China’s EEZ and continental shelf before China declared and/orestablished its legal regime on the EEZ and continental shelf. However, it is confusing that Chinacontinues to use this terminology after its establishment of the EEZ and continental shelf regime.See the amended Law on the Marine Environmental Protection, 1999 and the amended Law ofFisheries, 2000. The terminology may refer to China’s historic waters. Nevertheless, the term asused in the MSR Regulations refers simply to China’s EEZ and continental shelf.

75 See Office of Law, Policy and Regulation, State Oceanic Administration, Explanationson the Regulations on the Foreign-Related Marine Scientific Research (in Chinese), October 1996,at 4–5.

76. However, the Mexican government reserves its discretional authority to impose addi-tional requirements respecting MSR in internal waters or the territorial sea. In practice, the UnitedStates scientists have conducted quite a number of MSR projects in Mexico’s internal waters. SeeVargas, supra note 51, at 33–34.

77. Office of Law, Policy and Regulation, supra note 75, at 9.78. Ibid., at 14.79. Ibid., at 13–14.80. Article 6 of the MSR Regulations.81. Office of Law, Policy and Regulation, supra note 75, at 17.82. Article 7 of the MSR Regulations.83. According to an official explanation, “major change” refers to any change of the opera-

tional area, increase of operational contents, adjustment of operational method and means, andchange of operational time which could effect the accomplishment of the whole activity as origi-nally scheduled. See Office of Policy and Regulation, supra note 75, at 18.

84. Article 7 of the MSR Regulations.85. Article 8 of the MSR Regulations.86. Article 9 of the MSR Regulations.87. See Office of Law, Policy and Regulation, supra note 75, at 21.88. Article 9 of the MSR Regulations.89. Article 11 of the MSR Regulations.

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90. As described in Office of Law, Policy and Regulation, supra note 75, at 25.91. Article 10 of the MSR Regulations.92. Article 10 of the MSR Regulations.93. Article 10 of the MSR Regulations.94. Regarding the nature of such laws, see Office of Law, Policy and Regulation, supra

note 75, at 24.95. Article 244 of the LOS Convention.96. Article 12 of the MSR Regulations.97. Article 13 of the MSR Regulations.98. Notice on the Law Enforcement Supervision for the Foreign-Related Marine Scientific

Research, 16 May 2000, available in http://www.soa.gov.cn/zfjc/200010 (access date: 9 October2000).

99. Article 13 of the MSR Regulations.100. Notice on the Law Enforcement, supra note 98 and see China Ocean News (in Chi-

nese), 2 June 2000, at 1.101. Relevant information is available on China’s Marine Surveillance website: www.cms.gov.cn

(access date: 31 January 2001).102. Article 2 of the Notice on the Law Enforcement, supra note 98.103. Article 3 (1)(2)(3), ibid.104. Article 5 (1)(2), ibid.105. See “The Fifth Branch of the China Marine Surveillance Brigade Visit and Inspect the

Roger, American Surveying Vessel,” China Ocean News (in Chinese), 16 May 2000, at 1.106. No breaches were found, but the foreigners did not know very much about the relevant

Chinese laws and regulations. See “The South China Sea Surveillance inspected the Pacific Sup-plier of Singaporean nationality,” Ocean Working Information (in Chinese), No. 19, 15 October2000, available in http://www.soa.gov.cn/work/gzxx00-19.htm (access date: 8 November 2000).

107. See “Law enforcement to safeguard the rights in a foreign vessel,” China Ocean News(in Chinese), 12 December 2000, at 3.

108. “A workshop on law enforcement of foreign-related marine scientific research held inXiamen,” China Ocean News (in Chinese), 7 November 2000, at 3.

109. Regarding the implementation of the program of inspection, see China Ocean News (inChinese), 17 October 2000, at 1 and China Ocean News (in Chinese), 7 November 2000, at 1,and 3.

110. In December 2000, China held a national conference on maritime rights and interestsand international cooperation, where a number of serious cases of harm to China’s maritimerights and interests were noted. They included: (a) island occupation by other countries; (b)illegal fishing by foreign fishermen, and the arrest and sinking of Chinese fishing vessels byforeign countries; (c) plunder of China’s offshore oil resources; (d) unreasonable obstruction andillegal intervention in China’s normal MSR activities within China’s jurisdictional waters by someneighboring countries; and (e) collection of materials on China’s offshore marine environment byvarious means and channels. See “Serious Situation to Safeguard Our Maritime Rights,” ChinaOcean News (in Chinese), 19 December 2000, at 1.

111. See text accompanying supra note 95.112. Article 14 of the MSR Regulations.113. It has been noted that the expression “normal circumstances” found in Article 246(3) of

the LOS Convention was suggested by the United States. In the 1958 Convention on the Conti-nental Shelf, the word “normally” was used in a provision, Article 5(8), which is similar toArticle 246(3) of the LOS Convention. However, the word “normally” was replaced with theexpression of “normal circumstances” because during the UNCLOS III some delegations regardedthe word “normally” as referring to the pattern of coastal state behavior and thus introducing asubjective element in determining the extent of the coastal state’s duty to grant consent. SeeSoons, supra note 12, at 168.

114. Article 246(3)(4) of the LOS Convention.

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115. Soons, supra note 12, at 168.116. United Nations, “Marine Scientific Research: A Guide,” supra note 1, at 10.117. Regarding a number of problems the United States has encountered in the past years

for its MSR projects in the waters of other countries, particularly developing countries, see Roach,supra note 62, at 65 and see also Roach and Smith, supra note 39, at 439–441.

118. See C. M. G. Adams, “Marine Science Research: Operating the Consent Regime,” inE. D. Brown and R. R. Churchill (eds.), The UN Convention on the Law of the Sea: Impact andImplementation (19 Law of the Sea Institute Proceedings, 1987), at 383. Dzurek, supra note 4, at183–184 comments that

Coastal states are wary of research requests and the potential for misusing resultsand data. If they do not have the scientific capacity to evaluate an application, theyare more likely than not to deny a request, rather than to risk marine resources.Ignorance is a form of security, since what is unknown to all is safe from seizure.Coastal states’ preoccupation with resource exploitation and sensitivity to security,no matter how ill-founded, must be accommodated by the researching countries.

119. According to Article 252 of the LOS Convention, a state or international organizationmay proceed with an MSR project six months after the date upon which the information requiredpursuant to Article 248 of the LOS Convention has been provided to the coastal state unless,within four months of the receipt of the communication containing such information, the coastalstate has responded to the applicant regarding the MSR project.

120. See Vargas, supra note 51, at 36. As Vargas observes, the advantage of the impliedconsent system is that the researching state, knowing that it has already complied with all therequirements established by Mexico to conduct an MSR project offshore, has only to wait forfour months to officially hear from the Secretariat of External Relations. In the absence of anyofficial communication from the government of Mexico during this period of time, the researchinstitution may assume that its MSR project has been authorized.

121. See Soons, supra note 42, at 303-304. The relevant laws are reprinted in United Na-tions, “National Legislation,” supra note 46, at 138–139 (Indonesia); 235–239 (Spain); and 264-268 (Russia).

122. See Plesmann and Röben, supra note 43, at 386.123. Article 241 of the LOS Convention.124. ICJ Rep. 1976, paras. 23–33, at 9–11.125. The following points were agreed upon by the two countries: (1) the two governments

will establish and agree upon a framework for mutual prior notification with the assumption thatit will not have any effect on their basic positions vis-à-vis how to establish the borders of theirEEZs; (2) the purpose of the endeavor is to promote mutual trust; and (3) work on establishingthis framework will be accelerated. Respecting the agreement, see http://www.mofa.go.jp (accessdate: 14 December 2000).

126. See Hong Kong Economic Journal (in Chinese), 9 February 2001, at 10.127. Soons, supra note 42, at 297.128. The coastal States adjacent to the Yellow Sea are China, North Korea, and South Korea.

No maritime boundary delimitation agreements exist between China and these states. Borderingon the East China Sea are China, Japan and South Korea. No boundary agreements exist hereeither. Furthermore, China and Japan, have the territorial dispute over the Diaoyu/Senkaku is-lands in the East China Sea.

129. The LOS Convention encourages states to cooperate, through the conclusion of bilat-eral and multilateral agreements, to create favorable conditions for the conduct of MSR. Article243 of the LOS Convention.

130. See Boxter, supra note 5, at 238–239.131. Relevant information is available at http://www.soa.gov.cn.132. See “Cooperation hand in hand for marine research,” China Ocean News (in Chinese),

18 May 1999, at 1.133. “Marine international cooperation,” China Ocean News (in Chinese), 28 November 2000,

at 3.

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134. Article 264 of the LOS Convention.135. Article 297 (2)(a) of the LOS Convention.136. Article 297 (2)(b) of the LOS Convention.137. Plesmann and Röben, supra note 43, at 391.138. See above text accompanying notes 111–112.139. Even before the promulgation of the MSR Regulations, China had such a practice. See

Dai Ruguang, “Management of Oceanographic Data and International Cooperation in China,” inLewis Alexander et al. (eds.), supra note 42, at 344.

140. See generally Li Guoqing (ed.), Study on China’s Comprehensive Ocean Management(Beijing: Ocean Press, 1998) (in Chinese), at 348.

141. See Plesmann and Röben, supra note 43, at 387.142. See Roach, supra note 62, at 68 and see above text accompanying note 62.143. See M Gorina-Ysern, “Marine Scientific Research Activities as the Legal Basis for

Intellectual Property Claims?” Marine Policy, Vol. 22, 1998, 337–357.144. Mexico published an official book describing the legal regime that Mexico applies to

MSR activities conducted by foreigners in the marine zones subject to its sovereignty and juris-diction in 1994. See Vargas, supra note 51, at 29.

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