Transcript timbang tara 38/2009

EX TIMBANG TARA
DESIGNATING A PARTICULARLY SEA AREA
WITHIN EEZ, EFFECT AND LIMITS OF OTHER
STATES CONDUCTING MARINE SCIENTIFIC
RESEARCH
SSG11E
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MEMBERS
LT CDR RASHID ABDUL KAREEM – LEADER
LT CDR MOHD ZULKIFLEE BIN MARKAM RMN
LT CDR RASID BIN MAT RMN
LT CDR SALEEM JAILANI BIN SHAHUL HAMEED RMN
LT CDR MOHAMAD ZAMRI BIN ISMAIL RMN
LT CDR ABDUL RAZAK BIN AHMAD RMN
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SCOPE
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Intro
Aim & Scope
Background
Description
Analysis
Recommendation
Conclusion
Question
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INTRO
• The control of the oceans currently regulated by the 1982 UNCLOS
effecting since November 16, 1994.
• Estb the principle of a 200 nm limit on a nation's EEZ, allow nation
controls the undersea resources, primarily fishing and seabed mining
from baseline shore.
• EEZ apply freedom of navigation for the shipping community, naval
forces, the fishing industries and marine scientific research (MSR).
• The degree of control to be exercised
by a supra-national regulatory authority
over MSR both in terms of the extent of
coverage its scope and content
• Debate occur between those states
preferred few restrictions on MSR and
those wish for a more paternalist
approach.
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INTRO cont…
• The interests of coastal states, commonly wished to retain or expand
rights in their EEZ and continental shelf.
• The interests of land locked states wish to participate in MSR.
• The changes in law proposed in the Montego Bay Convention: If
inducted into customary international law by means of state practice,
would prove to be far-reaching.
• The Montego Bay Convention proclaims the right of all state to
conduct MSR.
• The duty of the states and competent international organization to
promote it but subject to other legitimate uses of the sea.
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The Star – 23 September 2007
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AIM & SCOPE
AIM
SCOPE
To discuss openly on the
issues affecting and limiting
the conduct of MSR in EEZ,
and how states enjoy
sovereignty subject to certain
limitations in EEZ
Research covers the
designating a particularly sea
area within EEZ, effect and
limits of other states
conducting MSR.
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BACKGND
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Under UNCLOS 1982, the define area of Territorial Sea until
EEZ and continental shelf as shown below:
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BACKGND
Military affairs most directly tied to a nation's daily concerns to the
economic activities and in support of its economic security.
• The protection of ports, trade goods and transportation services are
of paramount importance.
• A maritime nation’s economy also includes the fishing grounds of
the shallow waters above the continental shelf along the coast.
• The development of undersea technologies with respect to seabed
petroleum and mineral resources and the increased demands for
seafood have made it necessary to update the laws governing
maritime space.
• Many nations that border on the oceans of the world do not have the
financial resources or military power to constantly watch over their
adjacent sea.
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BACKGND
• The delimitation of EEZ between states, opposite or adjacent coasts
has to be carried out through a parties agreement iaw international
law in order to achieve as in the words of Article 38
• The Statute of the International Court of Justice (ICJ) an equitable
solution. The goal is to achieve an equitable solution
• Many states advocated that a single maritime boundary valid for
both the EEZ and the continental shelf should be drawn. This
provision alone has generated many delimitation disputes brought
before the ICJ.
• The philosophy behind regulation of MSR in the Convention is
further complicated by the difference in thought between the
developed and developing world.
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OVERLAPPING CLAIMS
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BACKGND
• The scientific and technological capabilities required to conduct MSR are
divided between the two:
– The Industrialised nations (Developed States)
• Sophisticated scientific and technological capabilities
• Holding a wide view on MSR and desiring that regulation should
reflect an approach
• Desire no restriction on research conducted in the “high seas”,
such a term to be widely defined
– In contrast the developing states,
• Suspicious of the developed nations claim that they had unlimited
freedom to conduct research in the vast areas of the oceans that
fell within the scope of the high seas,
• Feared the exploitation of the marine resources and the
commercial exploration of the sea would be to their economic
disadvantage
• Concerned upon stricter regulation of sources of marine pollution
would inhibit the speed of industrialisation
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DESCRIPTION
EEZ
• Expressions ‘patrimonial sea’ or ‘EEZ’ was first used in the early 1970s in
regional meetings and organizations in Latin America, the Caribbean,
Asia and Africa.
• The concept of an extended EEZ for economic purposes was used in the
late 40’s and early 50’s.
• Rooted in the 1945 Truman Proclamations
the national claims which several Latin
American countries such as Chile, Peru
and the Santiago Declaration of 1952.
• 2nd Truman Proclamation influenced
ocean-related policies in Latin American
countries, especially states that it is
appropriate for the United States to
establish conservation zones, whereby
fishing activities have been or in the future
may be developed.
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DESCRIPTION – EEZ cont…
• Generally a state’s EEZ extends to 200 nm (370 km) out from its coast.
• The exception to this rule occurs when EEZ would overlap that is, state
coastal baselines are less than 400 nm (740 km) apart.
• When an overlap occurs, it is up to the states to define the actual
boundary. Generally, any point within an overlapping area defaults to
the most proximate state.
• The EEZ overlap the contiguous zone, states also have rights to the
seabed of the continental shelf up to 350 nm (650 km) from the coast.
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DESCRIPTION – MSR
• MSR. Marine scientific research around the global serves a variety of
purposes. Productive MSR is necessary for the exploitation of the
ocean resources.
• In 20th century the MSR became very important as essential source of
information for verity fields.
• The major contribution of MSR includes the acquisition of knowledge
and development of understanding about the marine environment, its
characteristics, properties and processes
• Alfred H.A. - Defined MSR as “any study or related experimental work
designed to increase the man’s knowledge of the marine environment”.
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DESCRIPTION – MSR
• MSR considered one of the freedoms of high seas.
• Regarded as powerful tool for states due to the value that may be
derived from this information for military purposes, conservation
purposes and exploitation of marine resources.
• Advantages of MSR are taken by capable and technologically advance
states to use such knowledge for their economic and military benefits
• The developing states feared that if MSR was undertaken by
industrialised state to gather information for resource exploitation
• Fearing “the state would be even stronger bargaining position during
negotiations for concession contracts and other resource related
licenses.
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DESCRIPTION – MSR
• MSR must be conducted for peaceful purposes exclusively with
appropriate scientific methods and means
• Should not unjustifiably interfere with other legitimate use of the ocean
• UNCLOS includes, creating favourable condition for research, sharing
information and integrating scientists efforts as well as scientific data
and research resulting knowledge.
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ANALYSIS
• The conduct of MSR, important to understand what the origins of
EEZ.
• World War II - Only two maritime jurisdictional zones were
recognised beyond internal water a three nautical miles territorial
sea and, beyond it the high seas.
• The third law of the sea negotiation was primarily focused on
reconciling these economic interests while preserving the right of
maritime powers.
• The territorial sea was set at 12 nm and 200 nm EEZ was
recognized for the purposes of protecting sovereign coastal state
rights to resources.
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ANALYSIS
• In situation of countries have different interpretation of UNCLOS details
such disagreement can and do lead to conflict and confrontation.
• The high seas before 1982 was the outer edge of territorial sea when
EEZ was not exist. Since 1982, the high seas have been explicitly
defined as beginning of the outer edge of EEZ.
• Nevertheless US Navy has referred to the EEZ as “international water”
for purposes of navigation, rather than as EEZ.
• the term of international water as used by United State in this instance
is not a correct legal terms.
• This interpretation leads to confrontation between USA and other
countries such as China
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•
ANALYSIS
The USNS Impeccable, the survey vessel involved in a confrontation with
small Chinese navy and fishing vessels on March 8, 2009. Washington
insisted that the Impeccable had been conducting legitimate activities in
international waters, but Beijing accused the US navy of carrying out
illegal spying operations within China's exclusive economic zone.
• Beijing accused the US navy of
carrying out illegal spying operations
within China's EEZ. No doubt the
Impeccable was gathering intel for the
US navy on its Chinese counterparts.
• The incident took place some 75
miles south of China's Yulin naval
base on Hainan Island.
• The Impeccable is a purpose-built
surveillance vessel equipped with
sophisticated sonar systems that can
track Chinese sub based at Yulin.
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ANALYSIS
•
American officials emphasized that the Impeccable was unarmed and operated
by civilian contractors, the vessel was never in danger.
•
As for being civilian-operated, the Impeccable works directly with the US navy
and was involved in a major naval exercise in the Western Pacific in 2007
involving three aircraft carriers.
•
Breaching of international law is the subject
of debate. Beijing claims, such “military
operations” are banned within its 200 miles
EEZ under the 1982 UNCLOS.
•
The US, unlike China has not ratified the
Convention, disagrees with the Chinese
interpretation and continues its intelligencegathering op.
•
Whether or not the US has the legal “right” to
engage in such activities, their purpose is
hardly benign.
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•
MILITARY
USE
OF
EEZ
MSR taken by military agencies
which considered out of the peaceful
use frame
• Reconnaissance activities may
considered to be in the grey areas
surrounding “hostile intent” or “threat
of force”
• The different in technology:
Challenges to the coastal state does
not have a sufficient technology to
detect the user states vessels or
aircraft, moot the issue
• The 1982 convention provide adequate guidance regarding the activities
or should we rely on customary rules and states practice? There is a
different between military surveillance, MSR and spying. Later caused
possibly lead to “hostile intent”
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•
MILITARY
USE
OF
EEZ
The military activities in the EEZ show an increasing rate during the
last decade
• 2 main theories:
– Firstly the small costal state normally focused on exercise their
naval assets in their EEZ in order to show present to protect the
nation interest.
– Meanwhile the major power states conduct such operation in other
states EEZ which consider military process to gain and gather
intelligence.
• Better understanding of the legitimacy of such activities, understanding
the role of terminology in law regime as described by Alexander S.
Skaridov. Definitions of terminology are the key to the application of the
Law of the Sea. Definitions of a term can be determined from its
generic characteristics and specific differences. Using this method,
military hydrographical surveys are not a threat of use of force.
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MILITARY USE OF EEZ
•
The concept of military surveying became a regular phenomenon
•
The hydrographical surveying and MSR in the EEZ conducted under the terms of
UNCLOS, however with that recent trends with technology - the utility of
hydrographical data and state practice suggest that hydrographical surveying in
the EEZ should be under the jurisdiction of the coastal states.
•
Some countries carry out “military hydrographical survey” activities in the EEZ of
coastal states without their permission. With believes in a military sense, as a
type of battlefield preparation and becomes a threat of force against those
countries, thus violating the principle of peaceful use of the sea.
•
The military activities was an issue during the negotiation of the UNCLOS text in
1982. During the discussion its appear that some costal state such as Malaysia,
India and Pakistan contend that other state to carry out military exercise or
manoeuvre in other EEZ without consent.
•
Meanwhile, maritime power such as United States insists on the freedom of
military activities in EEZ such activities like freedom of navigation, military
research and surveillance.
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RESTRICTED AREA
• The coastal states can designate or declare particular area in her EEZ
in order to restrict the use of these particularly sea area in particular
period of time.
• This defiantly will impose a constraint on the use of EEZ for MSR and
also will limiting the freedom of navigation for both military, commercial
ships and aircrafts.
• Under this action the researcher argued is it under the right of
jurisdiction in EEZ or costal states use it as a tool to prevent other
state use.
• The fear of military use of such research lead some state to use
restricted area mechanism to minimise the military exercises and
intelligence gathering activities conducted by other countries in her
EEZ. This became an area of debates.
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•
RESTRICTED
AREA
The ‘Restricted Areas’, either for security, economic or hydrographical
reasons.
• The Restricted Areas for security reasons should be limited for a
certain period when the coastal state itself conducting its own military
exercises in the area.
• Restricted Areas for economic reasons may have a longer period of
application, particularly if it involves the exploitation of the resources of
the area. (fisheries or mineral resources of the continental shelf).
• Restricted Areas for hydrographical reasons may be relatively
permanent in view of the limited possibilities for navigation in that
area, such as in the ‘Dangerous Grounds’ in the South China Sea
where navigational charts, hydrographical and environmental data
have not been very extensive.
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RESTRICTED AREA
• Developing states sought to extend their jurisdiction and control over
large areas of what had formerly been the high seas.
• The wished to include it within the scope of regulation, the right to
regulate the conduct of MSR, through a narrow definition of MSR, and
incorporate complex provisos, including the right to refuse permission
for MSR to take place at all.
• Some states, constrained by national or international quota limits, may
not be able to obtain their desired level of exploitation, especially in
areas designated a marine protected area.
• This states may seek to exceed the threshold of their quota under
cover of “a research programme”.
• Pursued by the Japanese in their “scientific whaling programme” and
an attempt by Japan to exploit the resources of southern blue fin tuna
past their quota limits
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•
RESTRICTED
AREA
Similar practices have been pursued in relation to espionage and
intelligence missions or for economic gain by aggressive states who
wish to circumvent restrictions on undertaking ‘military activity’
• The mission of the Glomar Explorer in the 1970s demonstrated an
attempt by the United States to undertake a secret intelligence
operation under the cover of a ‘Deep Ocean Mining Project’
• One aspect of this op was the search for manganese nodules was
used as cover for the raising of a soviet nuclear submarine that had
sunk on the sea floor in 1968.
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PEACEFUL PURPOSE
• The concept of peaceful purposes is a cornerstone in the philosophy
underlying the Convention, particularly MSR
• The key principle has never been comprehensively defined. Found in
Articles 240/246(3) of Part XIII, but owing to the reluctance of maritime
nations to control their armament and nuclear capabilities, a
comprehensive formula was never settled upon it
• The concept was introduced in relation to MSR to appease
territorializes, keen to control military manoeuvres, exercises and
testing inside littoral states EEZ
• Never been determined due to the view of maritime nations who
advocated an approach that stated that peaceful military activities
were not, prima facie banned by international law.
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PEACEFUL PURPOSE
• The interpretation of “any peaceful purposes” in the Convention has
led to inconsistencies in interpretation
• The interpretation of the ambit of military activities of course, led to
considerable debate due to interpretation of Article 58 and the
uncertain development of state practice with respect to residual rights
in the EEZ
• Activities such as military testing of military devices and military
exercises have proved particularly contentious
• One school of thought takes view that such activity would lead to
endangering the proper advancement of MSR and the marine
environment
• The opposing view claim the Convention has no jurisdiction to restrict
any military activity that does not amount to a “threat or use of force” in
accordance with the UN charter under Article 2(4)
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RECOMMENDATION
• Showing and given mark of respects to the related nation claims on
the EEZ.
• An appropriate permission should be acquired and obtain by all
means to remark the respect on the claimant of EEZ to avoid
suspicious, distrust and anger could led to the conflict.
• The gap of developing and developed country is so huge.
Commonality in economy and military need activities exist.
Consideration others right on simlar EEZ area should be regarded.
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CONCLUSION
• Current development of the need of natural resources for every
littoral states economy sustainability and nation building related to
the MSR. It may conclude as implies on both side in positive and
negative impact
• Positive sign if both nations could estb an agreement on allowing
others to conduct MSR within the grey area for benefit of joint
exploration and development on resources by bilateral cooperation
and sharing the wealth. The positive engagement on this matters will
avoid tension and able to prosper and develop both nation.
• The denial of some super power nation to had more gain in
economy within certain area including the others littoral states EEZ
will neglect the right of others. The matters occurred on both nations
signing or refuse to sign and acknowledge the UNCLOS 1982
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CONCLUSION
• Differential interpretation on various article in UNCLOS lead to the
intention to gain more advantages by almost each nations. MSR
was carried out by capable states to gain more interest in economy
or military for the benefit of individual nation. The race on MSR
within others EEZ in particular without appropriate concern lead to
tension
• In the context of some military activity on MSR within other nations
EEZ should be avoidable. It only benefit for country conducting it for
the purpose of battle space preparation from the others views
• The clear objective on such activities could deceive the MSR reason
and concept for humankind peaceful purposes
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QUESTIONS ?
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