Bio-logging of Marine Migratory Species In Law of the Sea by Kraska, Crespo Johnston

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Marine Policy 51 (2015) 394–400
Contents lists available at ScienceDirect
Marine Policy
journal homepage: www.elsevier.com/locate/marpol
Bio-logging of marine migratory species in the law of the sea
James Kraska a,b,n, Guillermo Ortuño Crespo a, David W. Johnston a
a
Division of Marine Science and Conservation, Nicholas School of the Environment Duke University Marine Laboratory, 135 Duke Marine Lab Road,
Beaufort, NC 28516, USA
b
Stockton Center for the Study of International Law, United States Naval War College, Newport, RI, USA
art ic l e i nf o
a b s t r a c t
Article history:
Received 2 June 2014
Received in revised form
22 August 2014
Accepted 22 August 2014
The use of advanced and emerging remote data-collection technologies, and in particular bio-logging of
marine migratory species, raises fundamental questions about the scope of authority of coastal states to
regulate marine scientific research in the waters under their jurisdiction. Bio-logging involves the
attachment of devices to marine animals that collect and transmit data about their movements and
aspects of the local marine environment, and is now routinely used by marine scientists to support
conservation programs and augment oceanographic data collection. Tagged marine life, including
seabirds, marine mammals, sea turtles and pelagic fishes, may interact unpredictably with the territorial
seas and exclusive economic zones (EEZs) of numerous coastal states. This article explores the legal
implications of bio-logging within the legal regime of marine scientific research in the law of the sea.
Although bio-logging is a form of marine scientific research, when it is initiated outside a coastal state's
jurisdiction it does not later fall within it, even if the tagged animals subsequently enters a coastal state's
territorial sea or EEZ.
& 2014 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND
license (http://creativecommons.org/licenses/by-nc-nd/3.0/).
Keywords:
Bio-logging
Bio-tagging
Exclusive economic zone
Territorial sea
Law of the sea
UNCLOS
1. Introduction
Breakthroughs in technology that facilitate efforts by scientists to
monitor the movements of marine migratory species and collect and
transmit environmental data gives rise to new questions in the law of
the sea [1]. The law of the sea recognizes the special importance of
highly migratory species as critical shared resources, although this
list is no longer comprehensive. (Appendix A1). Rules for deployment
of research vessels and the conduct of traditional MSR are set forth in
the United Nations Convention on the Law of the Sea (UNCLOS).1
Coastal states have the right to regulate and authorize MSR in
offshore areas under their sovereignty and jurisdiction, including a
12-nautical mile (nm) territorial sea and 200-nm EEZ. Unlike traditional MSR, coastal states lack authority to regulate marine animal
bio-logging and tracking of species that may be found inside their
territorial sea and EEZ when the research is initiated by scientists
outside of these areas. Even though tracking and collection of data
through devices on marine animals that have transited or at least
partially inhabit a coastal state's territorial sea and EEZ might appear
n
Corresponding author at: Division of Marine Science and Conservation, Nicholas School of the Environment Duke University Marine Laboratory, 135 Duke Marine
Lab Road, Beaufort, NC 28516, USA.
E-mail address: [email protected] (J. Kraska).
1
United Nations Convention on the Law of the Sea, opened for signature 10
December 1982, 1833 UNTS 397, (entered into force 10 November 1994) (UNCLOS).
to implicate the sovereignty and jurisdiction of the coastal state, it
does not because the marine species are autonomous and entirely
independent of any human programming or control.
Coastal states have authority over marine scientific research
(MSR) that is conducted in their territorial sea and exclusive
economic zone (EEZ). Traditionally, MSR was done from a ship
operating in the EEZ, and the presence of the ship in water under
the sovereignty or jurisdiction of the coastal state required the
consent of the coastal State. Bio-logging, however, is a new form of
MSR that is not similarly constrained. Bio-logging permits the
collection and use of data transmitted or retrieved from devices
affixed to marine animals [2]. When the devices are attached to
marine migratory species on the high seas or in any other area
outside of the jurisdiction of a particular coastal state, and the
animals subsequently migrate into the territorial sea or exclusive
economic zone (EEZ) of that state, it is not entitled to require
permission or withhold consent for the MSR even though the data
were collected in areas under its sovereignty or jurisdiction.
Coastal states enjoy sovereignty over the territorial sea,
although their authority is not unlimited. Ships of all states, for
example, may exercise the right of innocent passage, and entry
into the territorial sea in case of force majeure is lawful as well.
Likewise, coastal states have sovereign rights and jurisdiction over
the living and non-living resources in the EEZ, as well as jurisdiction over some types of vessel-source pollution. Similarly, in the
EEZ, although the coastal state enjoys exclusive sovereign rights
http://dx.doi.org/10.1016/j.marpol.2014.08.016
0308-597X/& 2014 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/3.0/).
J. Kraska et al. / Marine Policy 51 (2015) 394–400
“for the purpose of exploring and exploiting, conserving and
managing” marine species, they do not claim exclusive ownership
over migratory species, such as sea turtles, “at least not while they
are swimming freely in their natural habitat – the oceans.”2
Furthermore, coastal states are presumed to authorize their consent for marine scientific research (MSR) in their EEZ, although
they are entitled to withhold consent under some circumstances.
Bio-logging and tracking of marine migratory species is a form of
MSR, however, that bypasses the traditional method of marine
science conducted from a dedicated research vessel, thereby
complicating (or even erasing) the coastal state's exclusive authority to control it.
2. Bio-logging
Animal tagging and tracking with remote instruments – now
often referred to as bio-logging – is one of the most efficient and
accurate methods of assessing a species movement ecology,
habitat-use and behavior [3]. Advances in very small, low power,
microelectronics have generated a bevy of new monitoring devices
that can be attached to marine animals in order to collect scientific
data and transmit it remotely, often by satellite or other wireless
technologies [3]. Data collected through these techniques generally includes information on the behavior and activities of tagged
animals such as diving behavior, foraging movements and migration patterns [3]. In some cases these instruments can also provide
data on the surrounding ocean, such as salinity, currents and
temperature, providing details on the environment the animal is
swimming through [2]. Several forms of bio-logging platforms are
in use, and they can be separated out by their mode of data
collection and recovery.
The simplest forms of bio-logging instruments emit a radio signal
that is tracked via satellite [4] or VHF antenna [5] and animal locations
are estimated via triangulation/Doppler-shift techniques [6]. Advanced
forms of these platforms can relay dive information as well over radio
frequencies. These devices are used on a variety of marine organisms;
however, their use is restricted to animals that surface periodically or
fly (e.g. marine turtles, seabirds, marine mammals and some large
pelagic fishes) as radio signals are not propagated through the water.
In contrast, many bio-logging platforms are archival, where data is
collected (often including higher resolution location data derived from
GPS systems) and stored onboard the devices and then downloaded/
transmitted after the deployment finishes [6]. In some cases archival
tags must be recovered (usually by tracking it with a co-located radio
beacon as above) and the data downloaded manually. This can be
accomplished if the platform is released from the animal at a certain
time or, in the case of small animals, during a recapture period where
the tag is removed during animal handling at a rookery or haulout [7].
In some cases, data can be collected over an extensive period of time
and then transmitted when the tag is shed from the study animal [8],
or it spends enough time onshore for data to be transmitted from the
tag [9]. This is especially true for platforms developed for pelagic fishes
that employ light-based geo-location techniques. These tags calculate
positions of animals using ambient light levels and these data are
transmitted to researchers via satellite relay when the tag is shed from
the animal and floats to the surface [10]. In many cases real-time
tracking is not possible with many archival bio-logging platforms.
2.1. Bio-logging in marine science and conservation
The use of telemetry and bio-logging devices on all the major
taxa of marine top predators, including fishes, marine reptiles,
seabirds, and marine mammals, promotes novel marine scientific
research without the need for expensive and conventional
research cruises. The surge in demand for marine science data
and the cost and challenge to secure ship time at sea has made
governments and scientists seek alternatives to traditional
approaches. In many cases, bio-logging is an attractive method
for collection of biological and physical data [2].
Bio-logging is now playing an important role in the conservation of many highly mobile marine species and the habitats they
rely on. This includes, amongst other things, providing data on the
interactions of marine species with fisheries [11,12], identification
of foraging regions and relationships with static and dynamic
ocean features at various scales [13–15], and providing data critical
for calculating more precise abundance estimates [16,17]. The
utility of bio-logging for marine resource management is now
widely accepted by marine ecologists and oceanographers [2].
UNCLOS obligates states to conserve wide-ranging and valuable
species.3 The use of bio-logging has particular salience for the
management and conservation of threatened migratory species [18].
The Convention on Migratory Species (CMS), for example, has classified species that are in peril of extinction,4 and identifies those subject
to special protective measures.5 The ability to effectively manage such
species; however, is hampered by the requirement to undergo lengthy,
expensive and sometimes unsuccessful administrative and logistical
processes to obtain permission to conduct MSR in coastal state EEZs.
Long-range migratory species may not only enter several countries
EEZs individually and as a species, but do so in an unpredictable
manner. The new modality of bio-logging improves our understanding
of the life histories of migratory species and contributes to international management and conservation of them.
2.1.1. Jurisdictional complexity of bio-logging
A rapid survey of geospatial data in the OBIS SEAMAP6 archive
demonstrates the large number of EEZs that are crossed, entered,
and transited by specific marine highly migratory species (Table 1).
For example leatherback turtles, one of the most widely ranging
marine turtle species, have been recorded in 67 coastal state EEZs.
Humpback whales, a mammalian species that makes extensive
yearly migrations from feeding to breeding grounds have been
recorded in 57 coastal state EEZs. Atlantic Bluefin tuna are found
in at least 17 different EEZs. Perhaps most importantly, the
movements of these widely ranging marine species are defined
by the unpredictable nature of individual behaviors and dynamic
migration routes. These complexities are illustrated below using
examples of telemetry data from across the major taxa studied
through bio-logging techniques in marine systems.
The distribution and migration routes of many marine species are
dynamic and unpredictable, varying among individuals and species
and from season to season. For example, data from two loggerhead sea
turtles tagged at the same location at Reunion Island (Fig. 1) illustrate
completely different movement paths, with one animal moving North
to Yemen and Oman, while the other animal moved south to visit the
South African EEZ for some time – despite being part of the same
population and tagged in the same year.[19]
3
UNCLOS, art. 239.
Convention on the Conservation of Migratory Species of Wild Animals opened
for signature 23 June 1979, 1651 UNTS 356, (entered into force 1 November 1983),
Appendix A1.
5
CMS, Appendix II.
6
Ocean Biogeographic Information System Spatial Ecological Analysis of Megavertebrate Populations http://seamap.env.duke.edu/http://seamap.env.duke.edu/.
4
2
UNCLOS, art. 56 and WTO Appellate Body Report on U.S. – Import Prohibition of
Certain Shrimp and Shrimp Products, WT/DS58/AB/R (October 12, 1998), para 133.
395
57
17
The international law of the sea is codified in UNCLOS, which
was adopted in 1982 after nine years of negotiation by a multilateral diplomatic conference. The treaty is the “constitution” for
the world's oceans because it apportions rights and duties among
flag states, coastal states, and port states concerning virtually
every activity at sea.7 Since UNCLOS entered into force in 1994 it
has become “the legal framework within which all activities in the
oceans and seas must be carried out.”8 The convention reflects
“sets of implicit or explicit principles, norms, rules, and decisionmaking procedures around which actors' expectations converge”
concerning activity in the water column, on the seabed, on the
surface of the ocean, and in the airspace above it.9 Creation of the
EEZ, which is neither territorial sea nor high seas, was one of the
67
Argentina, Brazil, Chile, Uruguay, Venezuela, Colombia, Guyana, Suriname, and
Ecuador
The movements of humpback whales are similarly dynamic
and unpredictable. For example, the migratory movements of one
humpback whale tagged in the waters of the Antarctic Peninsula
region entered the EEZs of 5 countries on its way to the Gulf of
Panama (Fig. 2). However, a humpback whale captured photographically in essentially the same location was recaptured in the
breeding grounds of American Samoa [20], a destination that is
nearly 100 degrees of longitude away from the Gulf of Panama
(Fig. 2). A straight–line path connecting these locations intersects
the EEZs of three nations not visited by the tagged humpback
(Fig. 2). Mark-recapture studies of humpbacks in the North Pacific
also illustrate the unpredictable nature of these highly migratory
species. Some animals photographically captured in Hawaii were
recaptured in Canada, the US, and Russia. Furthermore, some of
these individuals move amongst feeding and breeding locations
over their reproductive lifetime [21].
Seabirds also exhibit highly variable and unpredictable movements, even when their feeding and breeding regions are well
known. The movements of Arctic terns tagged in Greenland
provide a compelling example of how unpredictable their interactions with national EEZs are [22]. Fig. 3 illustrates the paths of
two Arctic terns tagged in 2007–2008. One animal visited 15 EEZs
(one of which is disputed) during a year, spread between the
northern and southern hemispheres. A second animal, tagged in
the same location, visited a larger number of EEZs (16) during a
year migration cycle including 9 EEZs not visited by the first tern.
Finally, large pelagic fishes are also studied through the use of biologging and they are similarly unpredictable in their movements posttagging. For example, two Atlantic Bluefin tuna tagged in the waters of
the US off North Carolina moved in essentially opposite directions over
the course of the deployments (Data courtesy of Barbara Block,
Stanford University). One animal spent time in the EEZs of the US
and Eastern Canada, then moved south into the Gulf of Mexico after
spending a brief amount of time in the EEZs of Cuba and Mexico
(Fig. 4). The second animal, however, moved across the Atlantic and
into the Mediterranean, and interacted with the EEZs of Algeria,
Canada, Italy, Morocco, Portugal, Spain, and the United Kingdom on
the way (Fig. 4). It should be noted here that in the case of most
pelagic fish bio-logging, archival light-based geolocation tags are used,
which only provide data on the movements of the animals after the
tag is shed form the animal.
3. The law of the sea
North
American
EEZs
Asian
EEZs
Oceania
EEZs
South
American
EEZs
Total
European
EEZs
Morocco, Algeria, Tunisia, Libya and Western Morocco, Western Sahara, Nigeria, Cameroon, Cape Verde, Equatorial Guinea,
Sahara
Gabon, Congo, Angola, Namibia, South Africa, Madagascar, Mozambique and
Comoros
Spain, Portugal, Ireland, United Kingdom
Denmark, France (Mayotte, Martinique), Iceland, Norway, Portugal, Spain and
and Denmark (Faroe Islands)
United Kingdom
Morocco, Western Sahara, Guinea-Bissau, Sierra Leone, Côte D’Ivoire, Ghana, Togo,
Benin, Sao Tome and Principe, Cameroon, Gabon, Congo, Angola, Namibia, South
Africa, Mozambique, Madagascar
Portugal (Azores and Madeira), France (French Guiana, Martinique), United
Kingdom (Saint Helena, Bermuda), Spain, Belgium, Denmark (Faroe Islands) and
Ireland
United States, Mexico, Nicaragua, El Salvador, Guatemala, Cuba, Haiti, Bahamas,
Jamaica, Dominican Republic, Panama, Grenada, Saint Kitts and Nevis, Saint Lucia,
Saint Vincent and the Grenadines, Trinidad and Tobago, Antigua and Barbuda,
Honduras, Barbados & Costa Rica,
Sri Lanka, Bangladesh, India, Indonesia, Singapore, Malaysia, Thailand, Vietnam,
Qatar and Bahrain
Papua New Guinea, Vanuatu, Australia and the Solomon Islands
African
EEZs
Humpback whale
Atlantic Bluefin Tuna
Leatherback turtle
Table 1
The EEZs entered by 3 highly migratory marine species. Data obtained from the OBIS SEAMAP Archive.
Australia, New Zealand, Papua New Guinea, Fiji, Solomon Islands, Niue and Cook
Islands?
(7)- Argentina, Brazil, Colombia, Ecuador, Peru, Uruguay and Venezuela
J. Kraska et al. / Marine Policy 51 (2015) 394–400
United States, Canada, Cuba, Mexico, Haiti, United States, Canada, Mexico, Panama, Barbados, Bahamas, Costa Rica,
Bahamas, Dominican Republic, British Virgin Dominica, Dominican Republic, El Salvador, Grenada, Guatemala, Saint Kitts and
Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago and
Islands (U.K.) and Anguilla (U.K.)
Barbados
China, Indonesia, Oman, Russia, Sri Lanka and Yemen
396
7
Tommy T.B. Koh, A Constitution for the Oceans, in The Law of the Sea: United
Nations Convention on the Law of the Sea with Index and Final Act of the Third United
Nations Conference on the Law of the Sea xxxiii, xxxiv (1982).
8
UN Doc. A/68/PV.63, December 9, 2013.
9
Krasner, S.D. “Structural Causes and Regime Consequences: Regimes as
Intervening Variables.” (1982) International Organization 36: 185, 186.
J. Kraska et al. / Marine Policy 51 (2015) 394–400
397
EEZs
Loggerhead Turtle 1
Loggerhead 1 Loggerhead 2
Loggerhead Turtle 2
France
Madagascar
Oman
Seychelles
Somalia
Yemen
Land
90E
60E
30E
0
France
Madagascar
South Africa
Start
30S
0
650 1.300
2.600 km
Fig. 1. The raw movement tracks and EEZs visited by two loggerhead turtles (Caretta caretta) tagged with satellite transmitters on Reunion Island in 2011–12 [19]. Data
courtesy of Kelonia/IFREMER.
Humpback Whale 1
Humpback Whale 2
60W
120W
150W
30S
90W
0
Land
EEZs
Humpback 1 Humpback 2
Chile
Colombia
Ecuador
Panama
Peru
0
1.250
France
New Zealand
United States
Start
60S
2.500
5.000 km
Fig. 2. The raw movement tracks and EEZs visited by of two humpback whales (Megaptera novaeangliae). Humpback 1 was satellite tagged in the Western Antarctic
Peninsula region during 2012. Humpback 2 was captured photographically in American Samoa in 2005 and recaptured in the WAP in 2009.
greatest innovations in UNCLOS, and it created the right and
expectation among coastal states that they have exclusive sovereign rights in living resources to a distance of 200 nautical miles
(nm) from shore, as well as jurisdiction over MSR in the zone.
UNCLOS also recognizes a 12 nm territorial sea, over which the
coastal state may exercise sovereignty. Consequently, bio-logging
potentially implicates coastal state sovereignty in the territorial
sea, and two coastal states interests in the EEZ: exclusive sovereign
rights in the living resources and jurisdiction over MSR. Marine
migratory species, however, are oblivious to the coastal zones
established by UNCLOS, and the legal regimes that apply within
them.
3.1. Sovereignty in the territorial sea
Coastal states enjoy sovereignty over the water column, airspace, and seabed of the territorial sea. Other states may access the
territorial sea for the purpose of innocent passage – the “continuous and expeditious” transit of the zone in a manner that does
not affect the “peace, good order o security of the coastal state.”10
398
J. Kraska et al. / Marine Policy 51 (2015) 394–400
EEZs
Arctic Tern 1 Arctic Tern 2
Antigua and
Barbuda
Barbados
Brazil
Disputed
Dominica
France
Iceland
Liberia
Mauritania
Morocco
Portugal
St Lucia
UK
Uruguay
Arctic Tern 1
Start
Arctic Tern 2
Angola
Brazil
Congo DRC
Congo Rep
Denmark
Equatorial
Guinea
France
Gabon
Ghana
Iceland
Morocco
Namibia
Portugal
South Africa
UK
Land
0
1.800 3.600
7.200 km
Fig. 3. The raw movement tracks and EEZs visited by two Arctic terns (Sterna paradisaea) tagged with satellite transmitters in Greenland/Iceland in 2007 [22]. Data courtesy
of the Greenland Institute of Natural Resources.
0
950 1.900
3.800 km
Bluefin Tuna 1
Bluefin Tuna 2
60N
Land
30W
30N
60W
90W
Start
EEZs
0
Bahamas
Canada
Cuba
Mexico
USA
Algeria
Canada
Italy
Morocco
Portugal
Spain
UK
USA
Fig. 4. The raw movement tracks and EEZs visited by two Atlantic bluefin tuna (Thunnus thynnus) tagged with archival light-based geo-location tags of North Carolina, in
2009. Data courtesy of Barbara Block, Stanford University.
Research and survey activities are inconsistent with innocent
passage.11 The “express consent” of the coastal state is required
for the conduct of MSR in the territorial sea.12 There is no
exception to the requirement to receive coastal state consent for
the conduct of MSR by ships engaged in innocent passage.
10
11
12
UNCLOS, art. 17–19.
UNCLOS, art. 19(2)(j).
UNCLOS, art. 245.
Furthermore, in the territorial sea all states enjoy a right of entry,
and the right to render assistance to mariners in distress, under
conditions of force majeure.13
These rules appear on their face to suggest marine scientists
should seek and obtain coastal state consent for MSR in the
territorial sea. This proscription, however, is limited to the physical
13
UNCLOS, art. 18(2). See also U.S. Coast Guard COMMANDANT INSTRUCTION
16451.9, U.S. Coast Guard Places of Refuge Policy, July 17, 2007, para. 5(i).
J. Kraska et al. / Marine Policy 51 (2015) 394–400
presence of a vessel or scientist within the territorial sea. Merely
studying the territorial sea remotely, either through satellite or
from aircraft in flight beyond the outer limits of the territorial sea
– or marine bio-logging – does not undermine the sovereignty of
the coastal state.
3.2. Resource rights in the EEZ
The EEZ constitutes about 40 per cent of the world's oceans –
the coastal zone that includes estuarine, green and brown water
habitat and the most productive marine ecosystems. These areas
are under the resource jurisdiction of coastal states.14 Coastal
states have sovereign rights for the purpose of exploring or
exploiting, conserving and managing living resources in the
EEZ.15 Indeed, the primary motivation for creation of the EEZ
was to afford coastal states the ability to manage offshore living
and non-living resources, and to ensure that the benefits of their
use inures to the coastal state. It might be suggested that biologging constitutes “exploring” living resources in the EEZ because
information obtained may indicate areas of species migration or
reproduction, or suggest areas especially rich for exploitation. In
this regard, data from bio-logging is likely to be important for
conservation and management of marine species, further implicating the sovereign rights of the coastal state. On the other hand,
the data collected is serendipitous – scientists have little or no
ability to predict what data will be collected. Furthermore, movement data may help to better understand or inform conservation
of an entire species, but it does not infringe on the coastal state's
sovereign rights because the marine species and not the scientists
that use bio-logging are controlling their movement.
3.3. Marine scientific research in the EEZ
Similarly, the use of bio-logging does not undermine the
coastal state's authority over the conduct of traditional MSR in
the EEZ.
Other states enjoy a range of rights and freedoms in a coastal
state's EEZ, including the freedom of navigation, overflight, freedom to lay submarine cables and pipelines, and other internationally lawful uses of the sea, as well as the conditional freedom to
construct artificial islands and other installations, freedom to fish,
and freedom of MSR. The latter right, however, is subject to coastal
State consent.16
Section 3 of Part XIII of UNCLOS established a regulatory
framework for MSR in the EEZ that skews authority toward coastal
states. The expectation to obtain coastal state consent for MSR in
the EEZ and on the continental shelf is set by Article 246 of the
Convention, and it affects the behavior of states and scientists. In
“normal circumstances” coastal states shall grant their consent for
MSR.17 Coastal states may withhold consent for research in the EEZ
and on the continental shelf that has “direct significance” for
natural resources, and those involving drilling on the continental
shelf, the use of explosives, or the construction of some artificial
islands and structures or that introduce toxic substances into the
sea.18 Furthermore, the coastal State has the right to require the
suspension of the research project in progress within its EEZ if it
does not comply with these rules.19 MSR conducted inside the EEZ
of a coastal state sometimes has pitted scientists seeking to
14
15
16
17
18
19
UNCLOS,
UNCLOS,
UNCLOS,
UNCLOS,
UNCLOS,
UNCLOS,
art. 56.
art. 56(1)(a).
arts. 58 and 87.
arts. 246(3).
arts. 246(5).
arts. 253.
399
conduct research against coastal states that withhold consent, or
make onerous demands to obtain it.20
This framework reflects the type of in situ research model that
originated from the nineteenth century voyages of the HMS
Challenger (1872–76). Oceanographic vessels and traditional
research conducted over the side of the ship are a physically
intrusive presence in the territorial waters and EEZ. In contrast,
remote sensing techniques and virtual presence eliminates the
intrusive nature of traditional MSR. The new MSR, therefore,
neither implicates the coastal states' authority over scientific
research physically conducted in its EEZ, and therefore does not
require its consent.
3.3.1. Contrast with floaters and gliders
In order to maximize their jurisdiction offshore, coastal states
are inclined to a broad and inclusive definition of marine scientific
research. States have debated, for example, whether collection of
routine meteorological and oceanographic observations by voluntary observing ships, floats, and gliders, and activities such as
marine surveys and bio-prospecting, constitute MSR [23] In a
response to an inquiry by the World Meteorological Organization
on whether routine marine observations and data collected for sea
state estimation, weather forecasts, and climate modeling constitute “marine scientific research,” the chairman of the Third United
Nations Conference on the Law of the Sea responded that they lie
outside the regime of MSR.21 The United States has relied in part
on this opinion to express the same view.22 The use of marine
migratory species as oceanographic platforms adds to this milieu
of discord and debate over the role of the coastal state in the MSR
regime. Marine animals can be tagged anywhere in the world, and
later through natural movement and migration, they may end up
in areas under coastal state jurisdiction.
The Intergovernmental Oceanographic Commission has issued
guidance on the use of floating buoys or gliders inside a coastal
state's EEZ as part of a program pursuant to an international
marine science effort. The guidance permits states to require
notification in certain circumstances. A state must be notified if
the deployed device “might” enter the EEZ of a participating state
that has so requested notification “reasonably in advance of the
expected entry of the float in the EEZ.”23 This guidance, however,
does not control the use of marine animals as platforms to collect
marine data; bio-logging is not analogous. The difference between
the two is that marine species follow unpredictable courses driven
by decisions made by the animals themselves, whereas drifting
buoys and floating instruments are driven by predictable wind and
currents, and their intended trajectories are often modeled ahead
of deployments as part of the studies they support. Furthermore,
deployed floats, gliders and drifters are also recoverable, whereas
tags deployed on animals are not.
20
The difficulty in obtaining clearance for MSR in foreign EEZs was evident
even before UNCLOS entered into force. See, for example, Ross and Fenwick. U.S.
Marine Scientific Research and Access to Foreign Waters, Oceanography 37–39
(November 1988) and Fenwick, International profiles on marine scientific research:
national maritime claims, MSR jurisdiction, and U.S. research clearance histories for
the world's coastal states (International Marine Science Cooperation Program,
WHOI Sea Grant Program, Woods Hole Oceanographic Institution, Woods Hole,
MA 1992).
21
Third United Nations Conference on the Law of the Sea, 14 Official
Records 102–3.
22
IOC Doc. IOC/ABE-LOS VII/8, memorandum of the IOC/ABE-LOS Sub-Group
on the IOC legal framework for the collection of Oceanographic Data within the
context of UNCLOS, 19.
23
IOC Res. IOC/EC-XLI.4, IOC Guidelines for the Implementation of Resolution
XX-6 of the IOC Assembly Regarding the Deployment of Profiling Floats in the High
Seas within the Framework of the Argo Programme, adopted by the IOC Executive
Council at its 41st session, Paris 24 June–1 July 2008, Annex, para. 3.
400
J. Kraska et al. / Marine Policy 51 (2015) 394–400
Bio-logging is further differentiated from other marine data
collection activities because the course, track, and behavior of
specific tagged animals are largely unpredictable and, essentially
unknowable, when instruments are deployed. This is especially
true for archival tags deployed on marine animals that do not
provide information about the movements of animals until they
are recovered or are jettisoned from the animal. Consequently,
while bio-logging is indeed a new form of MSR and therefore falls
within Part XIII of UNCLOS, the activity is “conducted” at the point
that the tag is placed on a marine animal – not at every location
that data is collected as the animal migrates through the oceans.
4. Conclusion
It sum, bio-logging initiated beyond the limits of the territorial
sovereignty or resource jurisdiction of coastal states is consistent
with international law, and in particular, UNCLOS. Coastal states
may not purport to require their permission and marine scientists
are not compelled to seek it, even if tagged marine species later
migrate into the territorial sea or EEZ. As in many areas of society,
technology has leapfrogged existing legal regimes. Bio-logging
illustrates how the authority of coastal states to monopolize
information about, and direct and control the study of, marine
migratory species has diminished. The use of bio-logging does not
mean, however, that coastal state sovereignty over the territorial
sea, or exclusive resource rights in the EEZ have contracted.
Instead, new methods of MSR have by-passed the existing regulatory regime, much as satellite remote sensing did decades
earlier. Likewise, just as remote sensing advanced understanding
of the Earth, bio-logging is expanding the horizon of marine
science, and improving the ability to develop and support programs for marine conservation.
Acknowledgements
This paper benefited from data produced by Barbara Block,
Carsten Egevang, Jerome Bourjea, Mayeul Dalleau and Ari Friedlaender, and from insights from Joe Bonaventura and John Norton
Moore. The research was supported by the Mary Derrickson
McCurdy Visiting Scholar program and Duke University Marine
Laboratory.
Appendix A1. Highly migratory species identified in UNCLOS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Albacore tuna: Thunnus alalunga.
Bluefin tuna: Thunnus thynnus.
Bigeye tuna: Thunnus obesus.
Skipjack tuna: Katsuwonus pelamis.
Yellowfin tuna: Thunnus albacares.
Blackfin tuna: Thunnus atlanticus.
Little tuna: Euthynnus alletteratus; Euthynnus affinis.
Southern bluefin tuna: Thunnus maccoyii.
Frigate mackerel: Auxis thazard; Auxis rochei.
Pomfrets: Family Bramidae.
Marlins: Tetrapturus angustirostris; Tetrapturus belone; Tetrapturus
pfluegeri; Tetrapturus albidus; Tetrapturus audax; Tetrapturus georgei; Makaira mazara; Makaira indica; Makaira nigricans.
12. Sail-fishes: Istiophorus platypterus; Istiophorus albicans.
13. Swordfish: Xiphias gladius. Sauries: Scomberesox saurus; Cololabis saira; Cololabis adocetus; Scomberesox saurus scombroides.
14. Dolphin: Coryphaena hippurus; Coryphaena equiselis.
15. Oceanic sharks: Hexanchus griseus; Cetorhinus maximus;
Family Alopiidae; Rhincodon typus; Family Carcharhinidae;
Family Sphyrnidae; Family Isurida.
16. Cetaceans: Family Physeteridae; Family Balaenopteridae;
Family Balaenidae; Family Eschrichtiidae; Family Monodontidae; Family Ziphiidae; Family Delphinidae
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