Governing Marine Scientific Research in China

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  • 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

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    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

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    Ocean Development & International Law, 34:127, 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: eaizouky@nus.edu.sg

    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(618907 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, Chinasoverall 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 Peoples 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, Chinas marine research has developed rapidly. Marine scientificsurveys have been carried out from Chinas 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 Chinas 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.

    Chinas domestic MSR is managed by various governmental departments and edu-cational institutions.4 This article will not detail the developments of Chinas domesticMSR,5 nor assess the laws and regulations applicable to Chinas domestic MSR;6 ratherit will focus on Chinas legal governance of MSR conducted solely or jointly by for-eigners in the sea areas within Chinas national jurisdiction. One thing which should beborne in mind is that there is a distinction in China between marine scientific researchand 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, Chinas 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 states 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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  • Governing Marine Scientific Research in China 3

    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

    Chinas Position at UNCLOS III

    During the debate on MSRs legal regime, Chinas 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 Chinas 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 thenSoviet 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 researchproposed by the superpowers. The Chinese delegation wondered whether there couldbe any fundamental scientific research in todays 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.

    Chinas 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 Chinas 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 apackage 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...

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