the legal regulation of floats and gliders—in quest of a new regime?

Ocean Development & International Law, 39:298–328, 2008Copyright © Taylor & Francis Group, LLCISSN: 0090-8320 print / 1521-0642 onlineDOI: 10.1080/00908320802235338

The Legal Regulation of Floats and Gliders—InQuest of a New Regime?

KATHARINA BORK

Walther-Schucking-Institute for International LawUniversity of KielKiel, Germany

JOHANNES KARSTENSEN

Leibniz Institute of Marine SciencesUniversity of KielKiel, Germany

MARTIN VISBECK

Leibniz Institute of Marine SciencesUniversity of KielKiel, Germany

ANDREAS ZIMMERMANN

Walther-Schucking-Institute for International LawUniversity of KielKiel, Germany

This article analyzes the legal status of unmanned instruments (particularly, floatsand gliders) for observation purposes in the ocean environment. These new kinds ofinstruments are being deployed by the thousands into the oceans, not the least as part ofthe Argo Project of the International Oceanographic Commission. Their uncontrolleddrifting has raised legal questions, especially when such instruments enter waters subjectto the jurisdiction of foreign states. The authors argue that the current internationallegal framework is insufficient to address the pertinent issues, and that a new legalregime is needed.

Keywords Argo Project, floats, marine scientific research, scientific instruments

Received 3 January 2008; accepted 11 February 2008.Research for this article was partially funded by the Kiel-based Cluster of Excellence “The

Future Ocean” financed by the German Research Council. The authors thank Alexander Proelß forhis valuable comments.

Address correspondence to Katharina Bork, Walther-Schucking-Institute for International Law,Westring 400, 24098 Kiel, Germany. E-mail: [email protected]

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The Legal Regulation of Floats and Gliders 299

Introduction

In 1999, the International Oceanographic Commission (IOC)1 adopted Resolution XX-6,which emphasized the problems arising whenever self-floating floats and gliders weredeployed into the oceans and instructed its Advisory Body of Experts on the Law of the Sea(ABE-LOS) to examine the legal issues regarding self-floating floats and gliders.2 Thereare a number of legal problems related to such floats; particularly, with regard to thosedeployed in the framework of international programs. Clarification of the legal questionsinvolved in their use therefore is important because, without clarification, the success ofthese international programs might be endangered.

This article is a first attempt to analyze the legal framework that governs the deploymentof floats and gliders and to propose solutions to a number of legal issues raised by floats andgliders. Before examining the legal issues, a background describing how floats and glidersfunction and what they can and are used for is required.

Technical Background of Floats and Gliders and Their Uses

Functioning

A float is defined as:

an autonomous vehicle used for collection of [ . . . ] data [ . . . ] and floatingpassively at a preprogrammed pressure level until at predetermined timeintervals rising to the ocean surface to broadcast its position and, as the casemay be, collected data to a satellite.3

This definition summarizes the fundamental operating principle of a float: Its horizontalpathways follow the movement of surrounding waters. The influence of the float body onthe surrounding waters should be minimal.

One may distinguish three groups of floats with respect to their operation: (1) thosethat drift at the surface only, called surface floats; (2) those that change their depth only atthe end of their mission from a drifting depth in order to rise to the surface, often referredto as RAFOS-type floats; and (3) those that frequently change depth during their lifetime,often referred to as profiling or Argo-type floats.4

The surface floats are launched from ships or planes. Because these floats are equippedwith a radio transmitter, satellites can assign a position to the float and retrieve datacollected by onboard instruments. The RAFOS-type floats are launched from ships andsink to a predefined depth where they drift for a predefined time from weeks to severalyears, controlled via an onboard clock. At the end of their mission, a weight is droppedcausing the float to rise to the surface where the data is communicated to shore via satellite.Often an array of fixed sound sources is placed in the region of investigation to allow foracoustical navigation of the float while it is drifting in the interior ocean.

The last group of floats, the profiling or Argo-type floats, are of most relevance in thecontext of this article. They are launched by ships or planes. Their profiling is achievedby changing the volume of the float through pumping oil in and out of the float body intoa bladder exposed to the ocean water. Because the overall mass of the float is constant, achange to a larger volume reduces the overall density of the float and, as a consequence, thefloat gets more buoyant and rises to the surface. When sinking from the surface to depth,

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Table 1Comparison between Argo-type float and glider

Argo-type float Glider

Dimensions Torpedo-shaped main body Torpedo-shaped main body with apair of wings mounted at sides.

0.2-m diameter 0.2- to 0.3-m diameter plus a wingspan of 1- to 2-m

1.3-m length (up to 2.0 mincluding antenna)

1.5- to 2.0-m length (up to 3.3 mincluding antenna)

Mass Approximately 25 kg Approximately 50 kgMission length Up to 4 years, 150 profiles Up to 300 daysOperating depth 2000 dbar Up to 1500 dbarData sampling rate Programmable; typically 100

temperature/pressure or 50conductivity/temperature/pressure points at 5- to10-m intervals

Programmable; typically conduc-tivity/temperature/pressureevery 2–6 seconds

Communication Unidirectional Argo(bidirectional iridium isphasing in)

Bidirectional iridium HF radio(unidirectional Argo for rescue)

Navigation At surface: At surface:Passive through multiple

satellite receptions whenusing Argo, new versionsuse GPS

GPS-based navigation

At subsurface: At subsurface:Sometimes via acoustic

transponder networksDuring the dive navigation via

compass, speed, andprecalculated average drift byocean currents

Abbreviations: GPS, Global Positioning System; HF, high frequency.

the process is reversed. The Argo-type floats have a cylindrically shaped body with sensorsand antenna on its top.

Most Argo-type floats use the unidirectional Argo satellite communication andnavigation system to transmit data to shore. Newer versions use two-way cell phonecommunication and a Global Positioning System (GPS) for navigation. The typical lifetimeof the Argo-type float is on the order of 150 profiles to 2000-m depth which, at a samplingrate of one profile per 10 days, provides for a lifetime of about 4 years.5

The second group of vehicles is made up of autonomous underwater vehicles with abuoyancy engine often called a glider. The driving principle of the glider is similar to thatof the Argo-type float—again, oil is pumped in and out of the glider hull to a bladder,keeping the mass constant but changing the overall buoyancy. This propulsion is called abuoyancy engine. The main body of the glider is a cylindrically shaped housing. In contrastto the Argo-type floats, the glider is ballasted differently so that it aligns almost with


the horizontal. In addition, it has two wings mounted on its sides. The ballasting and thewings enable a horizontal movement each time the buoyancy is changed, similar to a hangglider, thus the name glider. The ratio between the horizontal and vertical movement, theglide angle, is typically between 2 and 5. That means that, during the descent and ascentof a 1000-m dive, the glider will move about 4000–10,000 m horizontally. Maximumsinking speed is in the order of 20–40 cm/sec, which translates into an order 40–80 cm/sechorizontal speed. In some regions of the ocean, gliders move at the same speed as the oceancurrents and, in other areas, much slower. Thus, although in principle a glider’s path canbe controlled, a significant drift away from the planned track by the currents may occur.The interplay between vertical and horizontal movement results in a glider having a seesawtrack pattern.

Each time the glider is at the surface, it contacts shore via satellite or radiocommunication and navigates its position via the GPS. During communication with shore,the glider sends acquired scientific and engineering data and receives commands such asnew waypoints or modifications in scientific or engineering parameters. By using onboardcompass readings, velocity information, and previous drift information, the glider navigatesduring its “fly.” This navigation is used to estimate the drift caused by ocean currents, whichis corrected for when navigating to the next waypoint. The glider is recovered after eachmission. A mission may last several months, depending on the available energy.

Wider Context of Use

The floats and gliders under discussion in this article perform their missions as a contributionto operational oceanography. In this context, operational means that collected data aretransmitted in a timely fashion, typically less than once a week, to one or more datacenters that provide access to the data to third users; in particular, to assimilation centers.Assimilation centers use computers to run numerical forecasting models, which integrate thedata into ocean nowcasting, hindcasting, and forecasting fields that in turn allow generationof ocean information and user-specific products. The products may include warnings (waveheight, distribution of algae bloom), electronic charts of temperature and salinity, optimumroutes for ships, prediction of seasonal and annual primary productivity, ocean currents, ordetection of ocean climate variability. As long as the sampled data and the products andforecasts are distributed rapidly (e.g., to commercial users, governmental agencies, andregulatory authorities), the sampling activity should be considered to be part of the GlobalOcean Observing System (GOOS). GOOS is the oceans component of the Global ClimateObserving System (GCOS), and GCOS is in turn recognized as the climate component ofthe Global Earth Observation System of Systems (GEOSS). Most of the profiling floatsare part of the international Argo Project. So far, no comparable project exists for use ofgliders.

Sensors Used and Variables Measured

The standard set of variables measured through the use of floats and gliders comprisepressure, temperature, and conductivity measurements, with conductivity primarily usedto derive seawater salinity. In addition, other variables can be measured, depending on thesuite of sensors installed, and may include oxygen, fluorescence, turbidity, photosyntheticavailable radiation, and other more specialized variables. In the framework of operationaloceanography, the parameters should include so-called essential climate variables (ECVs).6

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The Legal Status of Floats and Gliders Under International Law

The main legal questions that arise when floats and gliders are used are as follows: Whatis their legal status, that is, are they to be considered ships or equipment or mere debris?Which state may exercise jurisdiction over floats and gliders, depending on the area ofthe oceans in which they are floating? How can floats and gliders be protected? How canships or other users of the seas be protected against collision with floats and gliders? Whathappens with floats and gliders, or with the data stored, when they are recovered or removedfrom the sea?

While Part XIII of the 1982 United Nations Convention on the Law of the Sea(UNCLOS)7 contains a complete set of provisions regulating the conduct of marinescientific research that might provide some answers to the above-mentioned questions,the provisions raise a significant number of new, and indeed yet largely unresolved, legalproblems.

Deployment of Floats and Gliders as Regulated by Part XIII of UNCLOS—An Overview

As mentioned, UNCLOS Part XIII regulates marine scientific research-related activities.Depending on the area where such activities take place, the provisions provide for eitherfreedom of marine scientific research or the requirement to obtain the prior consent of thecoastal state.

According to Article 245, the coastal state has the exclusive right to regulate, authorize,and conduct marine scientific research in its territorial sea. Even the right of innocentpassage, which otherwise generally allows foreign ships to pass through the coastal watersof a foreign state,8 does not limit this exclusive jurisdiction9 because Article 19(2)(j)indicates that conducting scientific research during passage through territorial waters isprejudicial to the peace, good order, and security of the coastal state and, thus, renders apassage noninnocent.

Marine scientific research in the exclusive economic zone (EEZ) and on the continentalshelf10 is governed by Article 246, which establishes a regime requiring qualified consentby the coastal state.11 The state or international organization undertaking research needs toobtain the consent of the coastal state prior to the beginning of the research. However, thecoastal state does not have an unlimited discretion to withhold such consent. Accordingto Article 246(3), the consent has to be granted in normal circumstances,12 provided theproject is carried out for peaceful purposes13 and undertaken in order to increase theknowledge of the marine environment for the benefit of mankind.14 The coastal state may,however, withhold its consent whenever its interests, as set out in Article 246(5), areaffected by the research project.15 UNCLOS Part XIII provides for two exceptions thatexempt the researching state from obtaining explicit consent of the coastal state in itsEEZ. First, Article 252 provides for the possibility of an implied consent, provided thata coastal state has not reacted within a period of 4 months after the required informationhas been provided by the researching state or the competent international organization.16

Secondly, under Article 247, the consent of the coastal state is presumed if that stateis a member of an international organization that aims at conducting marine scientificresearch, by itself or under its auspices, in the EEZ or on the continental shelf of thecoastal state, and further provided that the coastal state either explicitly approved theproject when the decision was initially made by the relevant international organizationor the coastal state did not object to the decision within a period of 4 months afternotification.


Given that the Area, defined as the seabed and ocean floor beyond nationaljurisdiction,17 is considered the common heritage of mankind and, therefore, is not subjectto national jurisdiction, states have an unfettered right to conduct marine scientific researchtherein under the conditions set out in UNCLOS Article 143.18

Ultimately, marine scientific research on the high seas is open and unconstrained sinceUNCLOS Article 87 specifically refers to marine scientific research as one of the traditionalfreedoms of the high seas.19 Article 257 explicitly reiterates this high seas freedom for allstates to conduct marine scientific research in Part XIII.

Part XIII is silent on the conditions of marine scientific research in internal orarchipelagic waters or in international straits. Because internal waters form part of thecoastal state’s territory, the coastal state exercises exclusive sovereignty in such waters.Hence, the coastal state is competent to regulate marine scientific research in its internalwaters at its own discretion.

With regard to passage through archipelagic waters20 and straits,21 considerationssimilar to those applying with respect to coastal waters come into play, meaning that priorconsent of the coastal state for marine scientific research is necessary.22 Since marinescientific research renders passage noninnocent,23 the regime of innocent passage does notrepresent an exception to this conclusion.

This brief survey of the various provisions of UNCLOS Part XIII demonstrates thevarying rules on marine scientific research in the zones of the sea. It also provides a firstinsight into the difficulties that may occur when deploying floats and gliders into the oceans,especially into a foreign state’s EEZ. In order for the provisions of Part XIII to come intoplay with regard to the deployment or use of floats and gliders, their use must constitutemarine scientific research. This poses one of the major problems because the definition of“marine scientific research” is unclear and the qualification of routine data collection foroperational purposes is open.

The Deployment of Floats and Gliders as Marine Scientific Research

UNCLOS and the Notion of Marine Scientific Research. UNCLOS does not contain adefinition of the term “marine scientific research.” The reasons for this lacuna may onlybe guessed, but it was pointed out during the negotiations24 that the substantive provisionswere meant to establish the meaning intended by themselves;25 hence, inclusion of anexplicit definition was deemed to be superfluous.

Fundamental versus applied research. The discussions during the UNCLOS negotia-tions mainly focused on the possibility of differentiating between fundamental research26 onthe one hand, and applied research on the other.27 No consensus was achieved, however. Theprovisions of UNCLOS are clear in that Part XIII applies to marine scientific investigationsundertaken for both fundamental and applied research purposes.28

The ordinary meaning of the term scientific research, which under Article 31(2) ofthe Vienna Convention on the Law of Treaties29 is the starting point for interpretation,indicates, first, that all investigations of a phenomenon, question, or problem conducted bythe means and methods of science are to be considered as scientific research.30 Second,the term marine requires a relationship of the investigation to the marine environment,the marine environment being understood to cover the seabed and the subsoil thereof, thewater column, and the atmosphere immediately above the water.31 The ordinary meaningis further confirmed by the provisions of UNCLOS, in particular by Article 243, whichobliges member states “to create favourable conditions for the conduct of marine scientificresearch in the marine environment and to integrate the efforts of scientists in studying

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the essence of phenomena and processes occurring in the marine environment and theinterrelations between them.”

Marine scientific research therefore can be defined as any investigation of a phe-nomenon occurring in the seabed or the subsoil, the water column, or the atmosphere directlyabove the water. This definition resembles that agreed on during the Third Conference onthe Law of the Sea (UNCLOS III) as part of the Revised Single Negotiating Text (RSTN),where marine scientific research was defined as “any study or related experimental workdesigned to increase mankind’s knowledge of the marine environment.”32

Although this definition does not distinguish between fundamental and appliedresearch, a comparison of the relevant provisions of UNCLOS leads to the conclusion thatcertain applied scientific activities are not covered by the term marine scientific researchand, hence, are not regulated by Part XIII.

Research versus exploration. Pursuant to Article 56(1)(a), the coastal state enjoys“sovereign rights” for the purpose of exploring and exploiting the resources, whether livingor nonliving, in its EEZ. In contrast thereto, marine scientific research is mentioned in Article56(1)(b), but “sovereign rights” is not used; rather the coastal state has “jurisdiction.”33

Article 56 thus clearly distinguishes between exploration of resources and marine scientificresearch. While the latter is regulated by the coastal state in conjunction with the provisionsof Part XIII, the former is regulated solely by the coastal state.

UNCLOS is once again silent on what is then meant by the term of “exploration.” How-ever, as the term is constantly mentioned in close relation to the exploitation of marine livingand nonliving resources, the conclusion can be drawn that exploration means data collectionactivities concerning the resources of a given area.34 Yet, this definition does not suffice todistinguish exploration from marine scientific research because the latter may also relate tomarine resources. The main difference, therefore, lies in the use of the information obtained.

While science involving the exploration of resources aims at their exploitation35

(i.e., their commercial use), marine scientific research intends information to be usedscientifically.36 Floats and gliders deployed solely for resource exploration reasons thereforeare not covered by UNCLOS Part XIII.

Marine scientific research versus hydrographic surveys. Hydrographic surveys needto be distinguished from marine scientific research. UNCLOS Article 21(1)(g) authorizesthe coastal state to regulate “marine scientific research and hydrographic surveys” duringinnocent passage through its coastal waters. Furthermore, Article 40, and Article 54 inrelation to archipelagic waters, require the prior consent of the coastal state wheneverresearch or surveys are undertaken during transit through straits or archipelagic waters.UNCLOS therefore differentiates between marine scientific research on the one hand, andsurveys on the other.37

Hydrographic surveys are commonly defined as the collection of information (i.e., thedepth of water, configuration and nature of the bottom, directions and force of currents)for the purpose of making nautical charts and similar products to support safety ofnavigation.38 The purpose of the data collections differs from marine scientific research.Consequently, using the profiling floats and gliders for the named purposes would result inthe inapplicability of UNCLOS Part XIII.

Peaceful versus military purposes. Projects not serving peaceful purposes are excludedfrom the scope of UNCLOS Part XIII. In this context, the question arises as to what ismeant by the term “peaceful purposes.” First of all, it needs to be clarified whether theterm has to be understood as nonmilitary. During the UNCLOS negotiations, there was nocommon understanding that peaceful purposes meant the total demilitarization of the sea;hence, nonmilitary.39 In fact, only a few states supported such a strict standpoint.40 The


majority of states were concerned with limiting the military uses of the sea, but not withtheir total prohibition.41 As UNCLOS mentions warships and their privileges,42 it can beconcluded that the peaceful purposes clause does not totally exclude military uses of thesea43 and, therefore, military research as such.

While it seems to be beyond doubt that peaceful purposes are served as long as aproject does not represent an illegitimate threat or use of force prohibited by both UNCLOSArticle 301 and Article 2(4) of the Charter of the United Nations,44 the unsettled questionremains how to differentiate between marine scientific research and military surveys. Thedefinition of “military surveys” proposed by some states poses a problem. The UnitedKingdom has defined military surveys as “activities in the ocean and coastal waters involvingclassified and unclassified marine data collection, by military owned or government ownedor chartered vessels, for military purposes.”45 Such a wide understanding of military surveyscan result in the exclusion of legitimate marine scientific research when undertaken by themilitary. However, the argument that military research is excluded from the regime ofPart XIII is not convincing, primarily because Part XIII in its scope does not differentiatebetween civil and military uses.

The nature of a project, be it either civil or military, therefore is of no relevance aslong as the scientific research pertains to the marine environment and is undertaken forpeaceful purposes.46 To facilitate the determination of whether a military activity relatesto the marine environment and is not aimed at other purposes, a comparison between civiland military research may be drawn. If the military research can also be undertaken underthe auspices of a civil research project47 (e.g., because the results are general in character),it is submitted that marine scientific research conducted by the military does not constitutea military survey.

As a consequence, the deployment of profiling floats and gliders by the military doesnot, at least by and of itself, turn the data collection into a military survey. If the collecteddata serves exclusively military purposes (i.e., purposes that could not be pursued by civilresearch), then the deployment of profiling floats and gliders would fit as a military survey.A clear distinction, however, will not be possible as long as the practice of contractingparties to UNCLOS is not uniform.48

Summarizing the above, it can be concluded that the deployment of profiling floats andgliders has to be considered marine scientific research whenever data for peaceful purposesis collected that pertains to the marine environment and that is not intended to serve theexploitation of resources of the EEZ or the compilation of surveys, either hydrographic ormilitary.

The Argo Project as Constituting Marine Scientific Research. Floats are extensivelydeployed in the framework of the Argo Project, which in turn forms part of the GOOS.49

The goal of the Argo Project is to obtain a systematic and complete set of data of the oceansin order to observe, analyze, and forecast the development of the oceans and the climate.50

The information gathered is available via the World Wide Web in near real time51 forpotential users such as governments, science, and industries to produce analyses, forecasts,and other useful products.52

The question that arises is whether a data collection network that collects the data in aroutine and systematic manner in the ocean by means of profiling floats for the purpose ofso-called operational oceanography53 constitutes marine scientific research.

During UNCLOS III, the World Meteorological Organization (WMO) expressedconcern about the development of a set of norms regulating marine scientific researchbecause it feared restrictions on the routine data gathering for weather forecasts by its

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member states.54 A. Yankov, then chair of the UNCLOS III Third Committee whichnegotiated the draft articles on marine scientific research, dealt with this concern by statingthat:

the pertinent provisions of [the articles dealing with] marine scientificresearch would not create any difficulties and obstacles hindering adequatemeteorological coverage from the ocean areas, including areas within theexclusive economic zone, carried out both in the framework of existinginternational programmes and by all vessels, since such activities had alreadybeen recognized as routine observation and data collecting which was notcovered by Part XIII of [UNCLOS] and that they were in the common interestof all countries and had undoubted universal significance.55

This statement was repeated during the 134th Plenary Meeting of UNCLOS III withoutany dissent.56 Those arguing in favor of a free ocean data collection system argued thatthis statement is evidence of the inapplicability of UNCLOS Part XIII.57 However, thereremains doubt.

First, the above statement is ambiguous.58 It is not clear whether routine data collectionsystems are excluded from the scope of UNCLOS Part XIII, or whether Part XIII does notrestrict them in that under Article 247 the possibility exists of implied consent whenevermarine scientific research is undertaken by an international organization.

Furthermore, the above statement alludes to data collection as constituting a commoninterest of all states. This can be understood as a reference to UNCLOS Article 246(3),which obliges the coastal state to consent to marine scientific research in its EEZ, providedthe project is undertaken for the benefit of mankind. It therefore could be argued that thestatement does not suffice, at least on its own, to exclude routine data collection systemsfrom the scope of Part XIII. Besides, as has been observed, the statement refers only toroutine data collection related to the atmosphere and not to the oceans.59 Therefore, theimplied approval of the statement by the states present during the negotiations does notnecessarily amount to the acceptance that routine data collection in general is not subjectto UNCLOS Part XIII.

Besides these doubts, the classification of routine and systematic data collection for thepurpose of operational application seems to be problematic. At the time of the negotiation ofUNCLOS, oceanographic surveying was not very advanced. Marine scientific research wasunderstood to cover specific research projects that collected, analyzed, and evaluated data.The Argo Project, and other systematic programs similarly serving operational purposes,now expand beyond this understanding because the data collected is not for exclusive use,but is made available immediately without delay in near real time to all kinds of users. Themodel is not that of specific researchers collecting data for a specific research project in anattempt to verify or falsify a specific question.

Floats and Gliders—Equipment, Installations, or Research Vessels of Their Own?

UNCLOS Article 248(b) and (d) govern scientific research undertaken by vessels. Section4 of Part XIII in turn applies to installations and equipment. Although Article 258 providesthat the deployment and use of scientific installations and equipment is subject to the sameconditions as those governing the conduct of marine scientific research (section 3 of PartXIII), a distinction still has to be made between vessels and installations or equipment. This


is first and foremost due to the fact that the obligations of states with regard to vessels andinstallations or equipment differ significantly.60

The classification of floats and gliders as either vessels, or installations or equipment,once again poses questions that cannot be answered easily. This is mainly due touncertainties when it comes to the qualification of which watercraft are understood tobe ships.

Floats and Gliders as Research Vessels or Ships.Definition of a vessel or ship.61 While floats and gliders do not have the appearance

of ships, they might still legally be considered such. This is due to the lack of a precisedefinition of “ship” in both UNCLOS and international law in general.62

The ordinary meaning of a vessel or ship as a starting point of the intended interpretationleads first to a broad definition. Accordingly, a ship may be understood as a hollow structuredesigned to withstand water,63 resulting in the prima facie assumption that floats andgliders are indeed ships. The distinction in UNCLOS Part XIII between vessels on theone hand, and equipment or installations on the other, shows that a hollow structure alonedoes not suffice to be a vessel since installations and equipment also possess such astructure.

Recourse is therefore necessary to the definition of the term “ship” in the variousshipping conventions, notwithstanding the fact that the term has to be interpreted in lightof the context in which it appears within the respective treaty itself.64

An examination of shipping conventions gives some indication of what might be theprincipal elements of a ship in international law in general and of a possible commonunderstanding with regard to each of these key elements.65 The Convention on theInternational Regulation for Preventing Collisions at Sea defines a vessel as “everydescription of water craft, including non-displacement craft and seaplanes, used or beingcapable of being used as a means of transportation on water.”66 The London DumpingConvention describes a vessel as a “waterborne or airborne craft of any type whatsoever. Thisexpression includes air cushioned craft and floating craft, whether self-propelled or not.”67

The 1996 Protocol to the London Dumping Convention extends this definition to waterbornecrafts and their parts and other fittings.68 Some International Labour Organization (ILO)conventions emphasize the need of a navigational process.69 Other ILO conventions requirea certain size of ship.70 The UN Convention on Conditions for Registration of Ships definesa ship as “any self-propelled sea-going vessel used in international seaborne trade for thetransport of goods, passengers, or both with the exception of vessels less than 500 grossregistered tons,”71 stressing the need of propulsion and transportation.

Though the above definitions of the terms “ship” and “vessel” vary in their precisescope, the common elements that can be found are: means of transportation, purpose ofnavigation, a certain size, and the location. Sometimes the first two elements are understoodto have the same meaning.72

These common elements derived from a comparison of several international shippingconventions are also confirmed by municipal law. Most domestic legal systems emphasizethe ability to navigate as one of the principal elements for a structure to be considereda ship,73 a requirement also confirmed in the jurisprudence of municipal tribunals.74

The element of transportation is also sometimes required,75 though some states assumea structure to be in navigation provided it is performing the function of transporting peopleor things in commerce;76 thus, intermingling navigation with transportation. The locationof the ship has to be at sea.77 Some states further set certain requirements with regard tothe means of propulsion,78 whereas others explicitly exclude the means of propulsion as a

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criterion for the definition of “ship.”79 The requirement of a certain size can also sometimesbe found in municipal law.80

All in all, the principal element of a ship appears to be the navigation or its ability tonavigate. The transportation of humans or goods, the means of propulsion and size are alsoof importance.81

Are Floats and Gliders Ships?.Navigation or ability of navigation. A ship is used in navigation or suitable to be used

in navigation if it is either actually employed in movement in water,82 meaning conductinga ship from one place to another,83 or has the abstract ability of such movement.84 Floatsand gliders indeed involve movement in water. They not only possess the abstract abilityof movement in water, but are also engaged in such movement. However, there is doubtwhether they can be steered or navigated. Floats follow currents without the possibility ofchanging their own course. Therefore, it could be concluded that they are not navigatingand cannot be considered to be ships.

However, the situation might be different with regard to gliders. Although gliders are notsteered by an onboard person, target waypoints can be modified via satellite communication.Gliders have navigation tools on board, such as a compass and attitude sensors, which areused to estimate a course that allows the glider to reach the next waypoint. Yet, in the caseof strong currents, gliders loose their ability to reach a waypoint and predominately drift.Nonetheless, as a matter of principle, the glider can be steered and, thus, might be regardedas being engaged in navigation.

Sometimes the criterion for a vessel, “used in navigation,” is complemented by therequirement that the primary use of a vessel must be that of navigation.85 It might be doubtedwhether the primary purpose of gliders is to navigate because they are mainly deployed toconduct marine scientific research and it is only incidentally that they navigate in order toachieve their primary function in exactly the same way that a research vessel does whileundertaking research.86 It therefore is difficult to differentiate between gliders and shipswith regard to the element of navigation, although the distinction might be more clear-cutbetween ships and floats.

Transportation and crewing. The further criterion of transportation and crewing is oftenintermingled with navigation87 or with a certain size of a ship. One could argue that a shipneeds to have a certain size to at least be capable of transporting goods or humans. Glidersare of a small size, not capable of carrying humans or goods. If one sees the criterion oftransportation or crewing as indispensable, gliders and floats cannot be considered as ships.

Propulsion. The criterion of navigation is sometimes complemented by the furtherelement of propulsion. Gliders possess only passive propulsion; namely, the buoyancyengine. Gliders can also be steered, be it only in a limited manner since the buoyancyengine’s limited forward speed is often slower than instantaneous ocean velocities. Theyare comparable to sailplanes, which use a combination of gravity and updrafts as propulsionand are not free to move in any direction. It is questionable whether such a passive way ofmovement suffices to qualify a glider as a ship.88 This is even more problematic as gliders,when exposed to strong currents, are no longer able to follow the programmed course,but predominately drift through the water. Unlike a normal ship, which is able to follow acourse independently of currents, gliders depend on their environment for movement.

Overall it seems that gliders and floats cannot be considered to constitute ships for thepurposes of the international law of the sea.

Floats and Gliders as Installations, Structures, or Equipment. Pursuant to UNCLOSArticle 258, the deployment and use of scientific installations and equipment in any area of


the ocean is subject to the regulations on marine scientific research. Not being ships, floatsand gliders might be considered as installations, structures, or equipment, these terms beingreferred to in several provisions of UNCLOS.

Articles 60 and 80 refer to “artificial islands, installations and structures,” whereasArticle 209(2) uses the words “installations, structures and devices” and Article 258 containsthe term “equipment.” While a common feature of these terms is their man-made characterin contrast to natural structures such as islands,89 the differences between the various notionsare less obvious.

The drafting committee at UNCLOS III understood the term “installation” to include“artificial islands” and “structures.”90 A remaining issue is the difference betweeninstallations and equipment. It is sometimes argued that the differentiation between theseterms is of little significance because any such distinction does not entail different legalconsequences.91 However, for purposes of the present inquiry, a distinction has to bemade. This is due to the fact that “equipment” is not mentioned in Articles 246(5)(c), 60or 80, which leads to differential treatment depending on whether floats and gliders areconsidered as installations or as equipment.92 Furthermore, and according to Article 260,the right to establish a safety zone does not exist for equipment. Hence, there are differentlegal consequences, which might in general be marginal, but that may have a significantpractical and legal relevance when it comes to the classification of profiling floats andgliders.

The ordinary meaning of the word “installation”93 denotes a facility of a certain sizein the same area.94 “Equipment,” however, can be considered to indicate a smaller size95

and not being limited to a certain location.96 The significance of size is also underlined byArticle 260, which provides for the possibility to establish a security zone for installations.Such a security zone makes sense only if the facility is of a certain size.97 Furthermore,equipment seems to have a special limited function while the purpose of an installationmay be the combining of several subsidiary functions. The distinction to be drawn betweeninstallations and equipment therefore depends on the size, the function, and the locationlimitation.98 Which of the named elements is decisive depends on a case-by-case analysis.

Profiling floats and gliders are of a small size. They are not fixed to the ground, norare they confined to a certain area. They float with the currents and are supposed to travelseveral hundreds of kilometers. Their only purpose is to collect data. Therefore, floats andgliders should be considered to be equipment within the meaning of UNCLOS Article 258.

Conclusion. The question of whether floats and gliders constitute ships cannot bedefinitively answered. There is no precise definition of the term “ship” or “vessel.” The sameis true regarding the definition of “equipment” and “installations.” The relevant provisionsof UNCLOS leave doubts and uncertainties. It is concluded here that gliders and floatsdo not fit the definition of ships or vessels and are equipment rather than installations.Nevertheless, the uncertainties are such that a specific legal regime covering and regulatingthe use of the ever-increasing number of floats and gliders may be required.

Rights and Obligations During the Conduct of Marine Scientific Research

Notwithstanding the lack of a precise definition of the underlying legal regime of floatsand gliders, the specific rights and obligations concerning floats and gliders with regard tothe conduct of marine scientific research, as regulated by UNCLOS Part XIII, will now bediscussed as well as the legal problems arising out of their use.

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Marine Scientific Research in Territorial Waters, Archipelagic Waters, and Straits.UNCLOS Article 245 which, by virtue of Article 258, also applies to scientific equipment,establishes the exclusive right of the coastal state to regulate and authorize marine scientificresearch in its territorial waters. It follows that the deployment of floats and gliders for thepurpose of marine scientific research is also subject to the authority of the respective coastalstate. Given that any use of scientific equipment is covered by the above provisions, it isnot only the deployment within territorial waters that is covered, but also situations wherefloats or gliders drift into the territorial waters of a coastal state.

If floats or gliders are deployed or used within the territorial sea without the approvalof the coastal state, they have to be removed unless prior permission has been granted.99

As mentioned above, the right of innocent passage does not limit the sovereignty of thecoastal state when marine scientific research is conducted during passage.100 Even if floatsand gliders are not used to conduct marine scientific research, either because operationaloceanography is not to be considered marine scientific research or because their datasampling can be stopped during passage,101 the involvement of a vessel is a necessaryrequirement in order for the right of innocent passage to come into play.102 Given the aboveconclusion that floats and gliders are not to be classified as vessels, the rules governing theright of innocent passage are inapplicable.

The same conditions apply, mutatis mutandis, to archipelagic waters and straits in whichthe right of innocent passage and transit passage is also excluded for vessels conductingscientific research.103 Again, it is exclusively for the respective coastal state to authorizeand regulate the deployment and use of floats and gliders for scientific research purposesin these waters.

Marine Scientific Research in the EEZ. Apart from Article 258, the deployment and useof installations in the EEZ is also regulated by Articles 60 and 80.104 According to Article60(1), the coastal state has the exclusive right to authorize and regulate the construction,operation, and use of artificial islands, installations, and structures either for purposesprovided for in Article 56 or those which might interfere with the exercise of rights of thecoastal state in the EEZ.

Because Article 56 refers to marine scientific research, any installations and structuresused for marine scientific purposes come within the scope of application of Article 60(1).This results in an exclusive right of the coastal state to construct the scientific installationsand structures as well as to authorize and regulate their construction, operation, and use. Incontrast, Article 258, when read in conjunction with Article 246, refers only to a right ofthe coastal state to authorize and regulate the deployment and use of scientific installationsand equipment in accordance with the relevant provisions of UNCLOS Part XIII.

Contrary to Article 60, the coastal state is therefore restricted by Part XIII whenexercising its rights under Article 246, and thus does not possess exclusive rights.This apparent contradiction between Article 60 and Article 258 is of relevance only ifinstallations are deployed.105 In the case of emplaced scientific equipment, it is Article 258that applies because Article 60, by virtue of its wording, does not cover equipment.106

Consent of the coastal state for deployment and the use of floats and gliders. UnderArticle 246(2), marine scientific research in the EEZ or on the continental shelf beyond 200nautical miles depends on the consent of the coastal state. Floats and gliders, when beingdeployed or drifting into the EEZ, need the prior approval of the respective adjacent coastalstate. Mere notification is not sufficient.107 Even if the coastal state is under an obligationto grant its consent, it still is necessary for it to consent before any deployment or use,including the mere drifting into the waters of the EEZ, takes place.108


In accordance with Article 246(3), the coastal state in normal circumstances is togrant its consent for marine scientific projects carried out both exclusively for peacefulpurposes and in order to increase the knowledge of the marine environment for the benefitof mankind. This implies an obligation of the coastal state to grant consent whenever theserequirements are fulfilled. There is no discretion,109 save for the assessment of whether ornot the criteria of normal circumstances,110 peaceful purposes, and increase of knowledgefor the benefit of mankind111 are fulfilled. These requirements are clearly met by the ArgoProject in its use of profiling floats.

In some cases, the coastal state may still have the discretion to deny consent. Article246(5) lists the reasons why a specific project may be rejected.112 The coastal statehas discretion if the project pursued is of “direct significance” for the exploration andexploitation of natural resources, whether living or nonliving.113 Whenever the data beingcollected by floats and gliders are of such significance for the coastal state, the state mayrefuse their deployment or use.

Specifically with regard to the Argo Project, where only data concerning watertemperature, salinity, and pressure are gathered, it cannot be seriously argued that a directeffect on the exploration and exploitation of marine resources exists.

In order to ease the strict requirement of prior consent, the possibility of an impliedor implicit consent has been established. According to UNCLOS Article 252, floats andgliders might be used or deployed without the explicit prior consent of the coastal state,provided that the deploying or using state or international organization has communicatedthe required information pursuant to UNCLOS Article 248 at least 6 months prior to theplanned deployment and use of the equipment, and the coastal state has not, within the4-month period after the receipt of the information, reacted or informed the researchingstate or international organization about further facts enumerated in Article 252(b)–(d).Article 247 establishes yet another possible exception on the necessity for a prior explicitconsent of the coastal state when floats or gliders are deployed and used under the auspicesof an international organization.114 Both provisions, however, require a certain period oftime to have elapsed for the implied regime to be triggered.

It can be concluded that, although the coastal state has to grant consent in normalcircumstances and the possibility of an implied consent exists, the marine scientific researchconsent regime is impractical in case of both the deployment and the use of profiling floatsand gliders.115 While the deployment of floats and gliders by a research vessel is controllableby the researching state or international organization, the control over the profiling float orglider is reduced once it has been deployed, given that profiling floats follow the flow ofcurrents which makes it nearly impossible to precisely predict their route or to influence it.While gliders have a programmed course and follow it as far as possible, strong currentsmay nevertheless have an influence on the course of gliders resulting in their uncontrolleddrifting. It therefore is unpredictable when and where a profiling float or glider mightenter the EEZ of a foreign coastal state. The prior consent of the coastal state cannot, inpractical terms, be obtained in advance. The solution would be to obtain, before deployingthe equipment in any area of the seas, the prior consent of all the coastal states of whichthe slightest possibility exists that the glider or profiling float might enter their EEZ. Sucha requirement would, however, place a disproportionately heavy burden on the researchingstate. This not only would thwart the practical effect of the freedoms of the high seas, butalso would disproportionately inhibit the freedom of marine research, both of which areimportant parts of the UNCLOS legal regime.

Conditions for the conduct of marine scientific research by floats and gliders. Theresearching state or international organization needs to communicate the information

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contained in UNCLOS Article 248 to the coastal state at least 6 months prior to thecommencement of a project. The information is to contain a description of the nature andobjectives of the project, and the method and means to be used including: a description ofthe equipment, the precise geographical areas in which the project is to be conducted, theexpected dates of the deployment of equipment and its removal, the name of the sponsoringinstitution, and the extent to which the coastal state might be present or participate in theproject.

These rules do not fit the needs of deployment and use of profiling floats and gliders.First of all, a precise geographical area cannot be circumscribed for profiling floats.Although it might be possible to name the area where they are to be deployed by theresearch vessel, their course, once deployed, is not predictable.

The requirement posing the major problem with regard to profiling floats and glidersis the time frame of 6 months prior to the commencement of a project for the passing tothe coastal state of relevant information. Apart from the problem of defining ex ante theexact date of deployment of a given float,116 the question of when a glider or profiling floatwill enter the EEZ of a foreign state cannot be answered 6 months in advance because itdepends on the prevailing weather conditions and the resulting ocean currents.

The researching state or international organization is to comply with the duties listedin Article 249, which for the most part refer to the participation of the coastal state inthe conduct of marine scientific research and its results.117 Problems arising in regard toprofiling floats and gliders might especially occur in the context of operational oceanographywhere the sampled data are immediately released. In such a case, the coastal state can hardly,if ever, enjoy the privileges of Article 249.

Suspension and cessation. The coastal state may demand the suspension or cessationof the conduct of marine scientific research only based on these reasons listed in UNCLOSArticle 253.118 A suspension can be requested whenever the research activities are not beingconducted in accordance with the information communicated pursuant to Article 248 orwhere the duties on the researching state under Article 249 are not being fulfilled. Cessationmay be demanded if the researching state or international organization does not rectify theircompliance with Articles 248 or 249.

Yet, the data sampling of profiling floats and gliders cannot be stopped once they havebeen deployed. It takes significant effort to collect the floats because their exact locationmay not be known. The provisions on suspension and cessation in UNCLOS Part XIIItherefore do not fit the needs of profiling floats and gliders.

Conclusion. The regulations on the conduct of marine scientific research in the EEZset out in UNCLOS Part XIII do not fit the requirements of the deployment of floats andgliders. This is not surprising because, at the time that UNCLOS was being drafted, largeresearch projects that use thousands of floats were still unknown. More generally, the normsgoverning marine scientific research in UNCLOS are based on a specific understanding ofwhat is meant by conducting marine scientific research—sampling data in a certain areawithin a limited time frame as well as in a foreseeable manner and with enough time foradvance planning—which is inconsistent with profiling floats and gliders.

Marine Scientific Research on the High Seas. Pursuant to UNCLOS Article 257, all statesenjoy the freedom to conduct marine scientific research on the high seas. Limitationsresult only from the general principles laid down in Articles 87–89, and the rules for thedeployment and use of scientific equipment pursuant to Articles 259–262.119 Accordingly,the deployment and use of floats and gliders on the high seas is generally uninhibited.120

Yet, the freedoms of the high seas are to be exercised with due regard to the interests of other


states in the exercise of their freedoms of the high seas. Because, from their deploymentinto the waters of the high seas, floats and arguably gliders are rudderless, it could be arguedthat the researching state or international organization is under an obligation to notify thecoastal state whose EEZ might eventually be concerned.121

Rights and Obligations Particularly with Regard to Scientific Equipment (Article 262).Pursuant to Article 262, scientific equipment needs to bear markings indicating the stateof registration or the international organization to which it belongs. Moreover, it needs tohave internationally agreed warning signals to ensure safety at sea. The first requirement isto ensure that the equipment can be attributed to a state or to an international organizationeither for reasons of responsibility122 or in order to distinguish the equipment from debris.123

Finally, it is useful to be able to locate the owner or operator of the equipment.124 However,the question has been left open about whether a registration comparable to those of shipsis necessary or whether it is sufficient that the marking indicates the owner or user ofthe equipment. Rules concerning warning signals have been partially developed by theInternational Maritime Organization (IMO)125 and the International TelecommunicationUnion (ITU).126

Jurisdiction Over Floats and Gliders

The question of jurisdiction over scientific equipment is not dealt with in UNCLOS. DuringUNCLOS III, the first propositions on marine scientific research included proposals dealingwith the problem of jurisdiction over installations and equipment.127 The Informal SingleNegotiating Text contained, in Part III, draft Articles 28 and 29 that would have specificallyaddressed questions of jurisdiction.128 However, these provisions were not carried forwardinto the subsequent Convention.

The question of who is to exercise what type of jurisdiction over profiling floats andgliders depends on the respective area in which they are found. In territorial or archipelagicwaters, it is the coastal state that regulates the emplacement and use of this equipment andwho has complete jurisdiction over the equipment.129 Floats and gliders on the high seas aresubject to the control of the state of registry.130 If no registration occurred, the emplacingstate or the state of the owner of the objects may exercise jurisdiction.131

With respect to emplacement in the EEZ, the matter is somewhat more complex. Article60 subjects installations to the exclusive jurisdiction of the adjacent coastal state. Becauseequipment, which includes floats and gliders, does not fall within the scope of Article 60,the situation could be treated as being analogous to that of research ships. Following thisassumption, the researching state enjoys jurisdiction over its equipment in the same waythat a flag state enjoys jurisdiction over its research vessels in the EEZ of a foreign state,132

while the coastal state enjoys jurisdiction in accordance with UNCLOS Part XIII.133 Thecoastal state therefore must consent to research projects in normal circumstances that donot fall under the exceptions of Article 246(5).

Provided the deployment of profiling floats and gliders falls within one of the Article246(5) exceptions, the coastal state may, pursuant to Article 249(2), impose conditions ontheir deployment and use resulting in its jurisdiction over the equipment.134 Otherwise, onceit has consented, the coastal state has no jurisdiction over the equipment, unless Article 253comes into play.135 Even then, the rights of suspension or cessation of the coastal state’sconsent do not include the right of the coastal state to interfere with the course of theequipment or to remove it.

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The state of registry, however, does not have jurisdiction in the EEZ of a foreignstate— notably where unauthorized interference with the objects occurs—but neither doesthe coastal state have such jurisdiction.136 It is only the somewhat vague Article 59 thatmay provide a possible solution as to which state should eventually exercise jurisdiction.

Floats and Gliders and the Exercise of Diplomatic Protection

UNCLOS does not contain provisions on the protection of equipment deployed for scientificresearch purposes from interference by other states. With regard to ships, the flag state hasthe right to exercise diplomatic protection for those vessels flying its flag.137 Becauseequipment needs to bear identification markings indicating the state of registration or theinternational organization to which it belongs, its situation might be similar to that of ships.This represents an area of legal uncertainty.

Removal, Recovery, and Return of Floats and Gliders

The removal of floats and gliders becomes necessary when either their life span has expired,their research work is finished, or their presence in waters subject to the jurisdiction of aforeign state is no longer approved. While the removal of equipment in the territorial seaand archipelagic waters is regulated by the coastal state, a duty on the emplacing stateto remove equipment used in the EEZ and on the continental shelf arguably can be seenin Article 249(1)(g).138 Accordingly, equipment needs to be removed once the research iscompleted, unless otherwise agreed. A regulation concerning equipment in the high seas isnot contained in UNCLOS.139

The duty to remove floats and gliders entails significant practical problems, however.While gliders do not sink once their life span has expired and can therefore be locatedeasily, the situation is different with regard to profiling floats. Floats are not easy to locatebecause they stop radio transmission. They may even sink at the end of their life span,rendering recovery more complicated if not impossible.

UNCLOS is silent about the recovery and return of found equipment. However, thequestion of what might happen if a float or glider is recovered is significant because thedata collected not only are transferred to land-based stations via satellite, but also are storedon the equipment itself.

Conclusion

The foregoing has demonstrated that the qualification of a project as marine scientificresearch results in the application of provisions of UNCLOS that are not capable ofadequately regulating the deployment of floats and gliders. More specifically, the ruleson prior consent for conducting marine scientific research in a foreign state’s EEZ areimpractical or even impossible to fulfill. Apart from these jurisdictional questions, UNCLOSPart XIII lacks regulations on significant questions that arise regarding the use of profilingfloats and gliders such as their removal and recovery, protection against illegal interference,and safety measures related to the equipment. There is a need to tackle these issues in a moreappropriate manner. It is against this background of inadequate normative prescriptions thatpossible alternatives for resolving the presented difficulties related to floats and gliders willbe considered.


Float and Gliders—What Kind of New Legal Regime?

UNCLOS

The most obvious approach to creating legal certainty with respect to floats and gliderswould be to modify UNCLOS. However, given the complexities of the UNCLOSamendment procedure,140 and the overall compromise the Convention represents, this doesnot appear to be a promising solution.

UNCLOS Article 311(3) allows states parties to conclude treaties that modify orsuspend the operation of UNCLOS provisions, provided that certain conditions arerespected; namely, that such agreements do not relate to a provision, derogation from whichis incompatible with the effective execution of the object and purpose of the Convention,and, furthermore, that such agreements do not affect the application of the basic principlesembodied in the Convention. Finally, the provisions of such agreements must not affectthe enjoyment by other states parties of their rights or the performance of their obligationsunder the Convention.

Despite some doubts on what the basic principles of UNCLOS might be,141 it isunderstood that the rights of coastal states with regard to marine scientific research intheir EEZ can be renounced by those states without affecting the basic principles and theobject and purpose of UNCLOS. Consequently, a treaty between two or more contractingparties of UNCLOS, by virtue of which the consent regime established by Part XIII was setaside, could represent an alternative to a formal amendment. Realistically however, such asuspension could only, if ever, be expected in cases where profiling floats and gliders weredeployed in the framework of international programs not concerned with the explorationof resources.

Additionally, it has to be noted that, even then, it can still be assumed that states willbe reluctant to modify or suspend provisions of UNCLOS; particularly, with regard totheir rights in waters subject to their jurisdiction. The provisions in UNCLOS on marinescientific research were intensely debated and carefully negotiated. An isolated discussionof one part of the overall “UNCLOS package deal” might destabilize the overall package.Even a limited amendment of the respective provisions of UNCLOS therefore appears tobe rather doubtful.

Draft Agreement on the Legal Status of Ocean Data Acquisition Systems

Problems arising when deploying Ocean Data Acquisition Systems (ODAS) wereconsidered in the early 1960s by IOC and the Inter-Governmental Maritime ConsultativeOrganization (IMCO).142 A draft agreement was considered by a joint United NationsEducational, Scientific and Cultural Organization (UNESCO)/IMCO Preparatory Confer-ence and, in 1972, a preliminary Draft Convention was completed.143 The possibility ofdeploying floats or gliders was not imagined at the time, but the problems discussedconcerning protection, jurisdiction, and safety remain the same. Moreover, floats andgliders meet the definition of “ocean data acquisition systems” as used in the 1972 DraftConvention.144 Accordingly, the 1972 Draft Convention needs to be taken into accountwhen possible solutions are analyzed.

In 1972, when the ODAS Draft Convention was finalized, negotiations on UNCLOShad already started. It was decided to postpone further discussions until UNCLOS IIIwas completed.145 Despite the need for a clarification of the international legal status ofODAS, especially with regard to safety measures, work on the Draft Convention was not

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resumed.146 Most states viewed the inclusion of Articles 258–261 in UNCLOS as a sufficientregulation of the matter.147 The IOC Assembly at its twelfth session in 1982 reactivatedwork on a Draft Convention in cooperation with the IMO.148 At almost the same time, theIOC Executive Council instructed the Secretariat to cooperate with the IMO and WMOto explore questions related to ODAS.149 In 1988, the Soviet Maritime Law Association(SMLA) offered to make a compilation of the existing rules and legal problems of ODAS,which was accepted by the IOC Executive Council.150 Two years later, the SMLA submitteda first Draft Convention on ODAS.151 In 1992, the draft text was considered by the IOCExecutive Council and the SMLA was invited to create a further version taking into accountthe comments given by the IOC member states and the IMO.152 Thereafter, a second revisionof the draft was submitted to the IOC Assembly during its seventeenth session in 1993.153

The IOC Assembly transmitted the text to the Inter-Secretariat Committee on ScientificPrograms Relating to Oceanography (ICSPRO) in order to establish an experts group toprepare a third revised version.154 Work on the ODAS Draft Convention then ceased. TheIMO informed the IOC in 1994 that, due to the lack of interest of IMO member states,the drafting of a convention on ODAS was being deleted from the IMO agenda.155 TheWorking Group on IOC’s possible role in relation to UNCLOS concluded, during its firstsession in 1996, that the decision to revisit the ODAS Draft Convention was up to theIOC and IMO.156 In 1997, the newly created ABE-LOS, which had been established toprovide advice on the IOC’s relation to UNCLOS,157 concluded that a decision to reactivatediscussions was up to the IMO and IOC.158 Despite the stalling of an ODAS Convention, theproblems related to the deployment of ODAS have not diminished, but have gained morerelevance due to their increased use during the past years. It therefore is not improbablethat some of the provisions of the Draft Convention will form the basis for new, specificattempts to regulate the deployment of profiling floats and gliders.

The 1993 ODAS Draft Convention attempted to comprehensively regulate the legalstatus of ODAS. Article 2 stipulated that the use of ODAS was to exclusively serve peacefulpurposes and that the right of deployment of ODAS into the high seas was to take placewith due regard to the rights of coastal and other states. The deployment in the EEZ of aforeign state was to take place in conformity with international law, and, in particular, inaccordance with UNCLOS Articles 245, 246, and 258–261.159

Under the Draft Convention, when deploying ODAS, states parties would need to makeprovisions to monitor their position, especially in order to prevent unauthorized entranceinto areas under a coastal state’s jurisdiction.160 With regard to the deployment of nondriftingODAS into internal or territorial waters as well as the EEZ, Articles 4 and 5 of the DraftConvention provided for detailed regulation and expressly referred to UNCLOS. Missing,however, are provisions on the entrance of drifting ODAS into waters under jurisdiction ofa coastal state.

In contrast to UNCLOS, conditions on the recovery and return of ODAS were explicitlyset forth in the Draft Convention. Accordingly, a state party would be under an obligationto inform the registry state about ODAS found in areas under the state party’s jurisdictionand either return the ODAS or permit the owner or operator to recover it.161 This obligationwould arise only if ODAS entered the waters under a coastal state’s jurisdiction by accident;namely, as a result of wreck, distress, or force majeure. It is doubtful whether the driftingof a profiling float or glider into the EEZ or territorial waters of a coastal state would beconsidered to be a result of distress or force majeure because their inherent purpose is todrift with the currents.

ODAS that have entered the internal or territorial waters of a coastal state do not needto be returned. Similarly, data concerning the exploitation of resources in the EEZ are


exempted from the named duty. This exclusion expresses the jurisdiction of the coastalstate over the resources in its EEZ.

With regard to jurisdiction, the Draft Convention confers on the state of registrationeffective jurisdiction and control with regard to all matters concerning an ODAS.162 Thestate is considered to have the same rights and obligations in matters concerning ODAS asstates have in matters concerning ships sailing under their flag.

In order to adequately protect ODAS, the Draft Convention contains an obligationof omitting interference with ODAS deployed outside national jurisdiction.163 Finally, theDraft Convention contains several provisions on safety measures, such as markings andsignals, and provisions on civil liability in the case of collisions or pollution that track thegeneral provision of UNCLOS.164

In conclusion, the content of the ODAS Draft Convention mainly complements thegeneral regulations of UNCLOS while addressing the special problems that arise whenODAS are deployed. However, the critical questions concerning profiling floats andgliders—particularly, the issue of consent of the coastal state whenever floats are beingdeployed for marine scientific research purposes into an EEZ—are not answered by theDraft Convention.

International Oceanographic Commission

Given the lack of a legally binding instrument that specifically governs the use of floats andgliders, it is the IOC and ABE-LOS that may be able to play an important role in addressingthe legal problems concerning profiling floats and gliders.

Adoption of Non-Legally Binding Guidelines. Instead of resuming the discussion on the1993 ODAS Draft Convention, the IOC is concentrating on current problems of specificODAS; namely, profiling floats, floating buoys, and similar objects. In IOC ResolutionXX-6, the Assembly emphasized the significance of the Argo Project as well as itsconsistency with UNCLOS.165 Furthermore, the IOC stressed the importance of trustbetween member states and, therefore, the need for notification whenever floats aredeployed. The inadequacies of legal regulation were recognized and ABE-LOS wasinstructed to analyze the feasibility of drafting a legal instrument dealing with the legalproblems of such floats. In 2001, ABE-LOS commenced discussing the legal questions.166 Inhis capacity as chair of the subgroup on the “legal framework within the context of UNCLOSwhich is applicable for the collection of oceanographic data,” Kari Hakapaa formulatedDraft Practical Guidelines167 as a basis for further discussions.168 Detailed discussions tookplace at the meetings of ABE-LOS in April 2006169 and March 2007.170

The Draft Practical Guidelines171 apply to: the deployment of floats in the high seasthat may drift into the EEZs of other states,172 the deployment of floats into the EEZ of aforeign state,173 and the deployment of so-called expandable bathythermographs (XBTs)by “ships of opportunity” into the EEZs of foreign states.174 Not covered is the drifting offloats into an EEZ of a foreign state from another EEZ. The reasons for this lacuna are notclear.175

The Draft Practical Guidelines provide for new notification and information duties.This, however, involves the very dilemma of the drafting exercise. The main problemthat arises when floats serving research purposes drift into the EEZ of a foreign state isthe lengthy and complex UNCLOS consent regime. Without changing these provisions,additional notification provisions, as suggested in the Practical Guidelines, will notovercome the problems.

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Unlike in the 1993 ODAS Draft Convention, which concentrated on a number ofunregulated questions of ODAS, the Draft Practical Guidelines do not address furtherproblems concerning floats such as protection, safety, or registration.

The Draft Practical Guidelines do not clarify the legal questions of profiling floats.Instead of addressing the unsettled questions arising within or beyond UNCLOS (i.e.,protection, safety measures, and registration), the Guidelines focus on jurisdictional matters.And, even then, the Guidelines are incomplete because not all scenarios are included intheir scope of application. Furthermore, only the use of profiling floats and surface buoysis to be regulated.176 Such a narrow scope disregards potential new or already existingdevelopments such as gliders.

Notwithstanding these critical issues, the envisaged notification and informationprocedures in the Draft Practical Guidelines could nevertheless reduce reservations thatcoastal states have with regard to profiling floats and result in a climate of mutual trust.The coastal states might in turn be willing to renounce some of their rights, at least in theframework of international programs, and the possibilities for further regulations on thismatter might therefore be enhanced.

Application of the Procedure Envisaged in UNCLOS Article 247. Another solution wouldbe to apply UNCLOS Article 247 to IOC programs, such as GOOS and Argo. As alreadymentioned, Article 247 simplifies the strict consent regime contained in Article 246 suchthat research projects conducted by or under the auspices of a competent internationalorganization in the EEZ of a coastal state are to be considered authorized by that state ifthe coastal state approved the project when the organization made the decision, or if thecoastal state was willing to participate in the project and did not express an objection within4 months after being notified about it.

The IOC is a competent international organization within the meaning of Article 247.Although programs such as GOOS and Argo are not technically conducted by the IOC, theCommission still coordinates them. This could be sufficient to meet the criteria that theseprograms be undertaken under the auspices of the IOC.

The question of which decision adopted by the IOC will qualify for the purposes ofArticle 247 is more problematic because not one but several decisions are made in theplanning of an international program. With regard to Argo floats, either the final decision ofdeveloping GOOS177 or the concrete decisions of deploying Argo floats could be consideredas the relevant ones.

In 2005, the IOC Assembly specifically adopted a procedure providing for theapplication of Article 247178 that aims to solve the above problems. The IOC createdan advisory body in which coastal states are invited to participate whenever a project thatcould lead to an application of Article 247 is intended to be undertaken by the IOC or underits auspices. The decision for the purposes of Article 247 is to be made by the Assembly bymeans of a resolution expressively referring to the application of Article 247 and closelyfollowing its provisions.

Once again, the lengthy time frame appears to be impractical whenever floats andgliders are deployed. In order to resolve this problem, the starting date of the overallproject—here the beginning of GOOS or Argo—instead of the date of the actual deploymentor entrance of each individual float or glider into the EEZ of the coastal state should beconsidered as constituting the beginning of the required 6-month period as well as of the4-month no objection period. This interpretation would be in line with Article 247 which,in sharp contrast to the procedures now adopted within the IOC framework, does notnecessarily require a notification of the deployment of each single float into the EEZ of


a coastal state. However, this interpretation may pose problems with regard to long-termand routine projects because it may take months or even longer before a float deployedin the high seas enters the EEZ of a coastal state. Therefore, the amount of time betweennotification about the beginning of an overall project and the actual deployment or driftinginto an EEZ could be quite long. In order to inform the coastal state of a possible entranceinto its EEZ, an additional notification besides the one required in Article 247 may benecessary. It is worth noting that an information system of this kind is already practiced bythe IOC concerning Argo floats.179

The IOC has not yet applied the adopted Article 247 procedure with regard to the ArgoProject.180 The executive secretary has been instructed to examine the implementation ofthe Article 247 procedure to IOC programs.181 It remains to be seen whether the IOC andits member states will be willing to apply Article 247 of UNCLOS to the Argo Project andto similar operational programs.

Conclusion

This article has posed the question of whether floats and gliders are in quest of a newregime. The first part of the article examined the problems arising when these platforms areused in the different areas of the oceans and arrived at the conclusion that there is a needfor action; especially, when it comes to the protection of equipment.

These difficulties result primarily from the application of the provisions of UNCLOSthat were not designed to, and are not adequate to, regulate the deployment of free-floatingequipment. In particular, marine scientific research projects that use floats and gliders areseriously hampered by UNCLOS Part XIII whose obligations are not only opaque, but alsoimpractical and hard to fulfill.

A new legal regime to overcome these difficulties appears to be desirable, but it is notprobable that one will soon come about. The discussions on the ODAS Draft Conventionin the 1990s demonstrate that coastal states are not yet willing to modify the current legalregime on marine scientific research despite a clear need for the use of floating devices toassist in the delivery of operational oceanography products for the benefit of mankind (e.g.,warnings, ship routing services, or detection of climate change). It therefore seems that,unlike floats and gliders themselves, their legal regime will remain firmly at anchor for thetime being.

Notes

1. For information on the work of IOC, see ioc.unesco.org/iocweb/index.php.2. IOC, Resolution XX-6, “Reports of Governing and Major Subsidiary Bodies, Twentieth

Session of the Assembly” (29 June–9 July 1999, Paris), IOC-XX/3, Annex II, at 13 et seq.3. IOC, “Draft [Practical] Guidelines of IOC, Within the Context of UNCLOS, for the

Collection of Oceanographic Data By Specific Means,” Seventh Meeting of the Advisory Bodyof Experts on the Law of the Sea (IOC/ABE-LOS VII), (19–23 March 2007, Libreville, Gabon),IOC/ABE-LOS VII/7.

4. For further details on Argo, see below sec. C.II.2.5. See Table 1, this article, for a summary of the technical details about such floats.6. See List of ECV in Table 1 of the Executive Summary of the Second Adequacy Report,

Report GCOS-82 (ES), (WMO/TD No. 1142), April 2003.7. 1833 U.N.T.S. 397.8. See, in general, K. Agyebeng, “Theory in Search of Practice: The Right of Innocent

Passage in the Territorial Sea,” Cornell Journal of International Law 39 (2006): 371 et seq.; and

320 K. Bork et al.

F. Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea(London, 2000), 38 et seq.

9. E. Jarmache, “Sur quelques difficultes de la recherche scientific marine,” La mer et sondroit—Melanges offerts a Laurent Lucchini et Jean-Pierre Queneudec, ed. V. Coussirat-Coustere, Y.Daudet, P. M. Dupuy, P. M. Eisemann and M. Voelckel (Paris, 2003), 303, 304 et seq.; P. K. Mukherjee,“The Consent Regime of Oceanic Research in the New Law of the Sea,” Marine Policy 5 (1981):98, 102; and A. A. Yusuf, “Toward a New Legal Framework for Marine Research: Coastal-StateConsent and International Coordination,” Virginia Journal of International Law 19 (1979): 411,416.

10. Profiling floats and gliders are not deployed on the continental shelf. Therefore, rulesconcerning the continental shelf are not considered in this article.

11. For a more detailed discussion on marine scientific research in the EEZ and the consentregime, see E. D. Brown, The International Law of the Sea, Vol. 1 (Aldershot, 1994), 426 et seq.;L. Caflisch and N. Piccard, “The Legal Regime of Marine Scientific Research and the Third UnitedNations Conference on the Law of the Sea,” Zeitschrift fur auslandisches offentliches Recht undVolkerrecht 38 (1978): 848, 859 et seq.; and T. Treves, “Principe du consentement et nouveau regimejuridique de la recherche scientifique marine,” in Le nouveau droit international de la mer, ed. D.Bardonnet and M. Virally (Paris, 1983), 268 et seq.

12. For an explanation of this term, see G. J. Mangone, “The Effect of Extended CoastalState Jurisdiction over the Seas and Seabed upon Marine Scientific Research,” Ocean Developmentand International Law 9 (1981): 201, 207 et seq.; and B. H. Oxman, “The Third United NationsConference on the Law of the Sea: The Eighth Session (1979),” American Journal of InternationalLaw 74 (1980): 1, 26.

13. See part C.II.1.d.14. For further information, see Mukherjee, supra note 9, at 102.15. The discretion to withhold consent is, however, limited to the reasons given in Article

246(5). Other reasons may not be applied, see United Nations Convention on the Law of the Sea1982, A Commentary, Vol. 4, ed. M. Nordquist, S. Rosenne, and A. Yankow (Dordrecht et al., 1991),518. For a different view, see Yusuf, supra note 9, at 420.

16. In this case, the research may proceed 6 months after the required information is submittedto the coastal state.

17. UNCLOS, supra note 7, art. 1, defines the Area as: “the seabed and ocean floor and subsoilthereof, beyond the limits of national jurisdiction.”

18. Because the operation of profiling floats and gliders in the Area is not at hand, marinescientific research in the Area is not considered in this article.

19. Regarding the freedoms of the high seas in general, see D. Anderson, “Freedoms of theHigh Seas in the Modern Law of the Sea,” in The Law of the Sea, Progress and Prospects, ed. D.Freestone, R. Barnes and D. Ong (Oxford et al., 2006), 327.

20. See Caflisch and Piccard, supra note 11, at 856 et seq.; R. Lattion, L’Archipel en droitinternational (Lausanne, 1984), 128; and M. Munavvar, Ocean States, Archipelagic Regimes in theLaw of the Sea (Dordrecht, 1995), 157.

21. See Bing Bing Jia, The Regime of Straits in International Law (Oxford, 1998), 154;and Caflisch and Piccard, supra note 11, at 856 et seq. For a general survey, see also J. vanDyke, “Legal and Practical Problems Governing International Straits,” Ocean Yearbook 12 (1996):109.

22. See UNCLOS, supra note 7, art. 40 in conjunction with art. 54.23. UNCLOS, supra note 7, art. 52 in conjunction with art. 19(2)(j) with regard to archipelagic

waters and art. 45 in conjunction with art. 19(2)(j) with regard to straits listed in art. 45(1).24. Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond

the Limits of National Jurisdiction 1973, Vol. 1, at 103, OR/A (XXVIII) III, 21 (Vol. 1–6).25. D. Pugh, Criteria and Guidelines for Ascertaining the Nature and Implications of Marine

Scientific Research, IOC, First Meeting of the Advisory Body of Experts on the Law of the Sea(ABE-LOS), (Paris, 11–13 June 2001), IOC/ABE-LOSI/7, Paris, 12 April 2001, at 3.


26. For a general definition of fundamental and applied research, see Organization of EconomicCooperation and Development (OECD), The Proposed Standard Practice for Surveys of Researchand Experimental Development, 1993, para. 1.

27. See the definition presented by the Soviet Union, Doc. A/AC.138/SC.III/L.31, and bythe Working Group of the Sea-Bed Committee, WG.3/Paper No. 4, in Report of the Committee onthe Peaceful Uses of the Sea-Bed, supra note 24, at 103, which differentiated between fundamentaland applied research. See the contrary definition presented by, for example, Trinidad and Tobago,“Draft Articles on Marine Scientific Research” A/CONF.62/C.3/L.9, 5 August 1974, in ThirdUnited Nations Conference on the Law of the Sea, Official Records, Vol. 3 (New York, 1975),252.

28. L. Gundling, Die 200 Seemeilen-Wirtschaftszone (Berlin, 1983), 235; and F. H. Th.Wegelein, Marine Scientific Research (Leiden, 2005), 82.

29. 1155 U.N.T.S. 331.30. A. Soons, Marine Scientific Research and the Law of the Sea (The Hague, 1982), 124. See

also OECD, supra note 26, para. 1.31. Soons, supra note 30, at 124. See also the general definition given by M. B. Schaefer

during negotiations in 1958, United Nations Conference on the Law of the Sea, Official Records, Vol.6, at 89.

32. Revised Single Negotiating Text, A/CONF.62/WP.8/Rev. 1/Part III, 6 May 1976, Article48, in Third United Nations Conference on the Law of the Sea, Official Records, Vol. 5 (New York,1976), 180.

33. With regard to the legal consequences of the differentiation between exclusive rights andjurisdiction in Article 56, see Gundling, supra note 28, at 216; Mukherjee, supra note 9, at 102; andA. Proelß, “Ausschließliche Wirtschaftszone (AWZ),” in Handbuch des Seerechts, ed. W. Vitzthum(Munich, 2006), 233 et seq.

34. Soons, supra note 30, at 125.35. For this understanding, see International Seabed Authority, Regulations on Prospecting

and Exploration for Polymetallic Nodules in the Area, approved by the Council on 13 July 2000,ISBA/6/C/8, Regulation No. 1, para. 1(b).

36. Pugh, supra note 25, at 3.37. A. Roach, Access to Clearance for Marine Scientific Research in the Exclusive Economic

Zone and on the Continental Shelf , First Meeting of the Advisory Body of Experts on the Law of theSea (ABE-LOS), (Paris, 11–13 June 2001), IOC/ABE-LOSI/7, Paris, 13 April 2001, at 1 et seq.; andSoons, supra note 30, at 125.

38. Roach, supra note 37, at 2.39. See, for example, statements of Madagascar, Third Conference on the Law of the Sea,

Official Records, Vol. 5, supra note 32, at 58; the Philippines, at 65; and the United States, at 62.40. See, for example, the position of Ecuador according to which all military activities had to

be excluded from the sea. Third Conference on the Law of the Sea, Official Records, supra note 32,at 56.

41. See the discussion related to the peaceful uses of ocean space, Third Conference on theLaw of the Sea, Official Records, supra note 39, at 54 et seq.; and A. Proelß, “Peaceful Purposes,” inMax Planck Encyclopaedia of Public International Law, ed. R. Wolfrum (Oxford University Press,2008), para. 11 et seq.

42. See UNCLOS, supra note 7, arts. 32, 95, and 236.43. See B. Boczek, Peaceful Purposes Provisions of the United Nations Conventions on the

Law of the Sea, Ocean Development and International Law (1989): 359, 370; and A. S. Skaridov,“Naval Activity in the Foreign EEZ—The Role of Terminology in Law Regime,” Marine Policy20(29) (2005): 153, 154.

44. F. Francioni, “Peacetime Use of Force, Military Activities, and the New Law of the Sea,”Cornell International Law Journal 18 (1985): 203, 223; O. P. Sharma, “An Indian Perspective,”Marine Policy 29 (2005): 147, 149; Skaridov, supra note 43, at 154; R. R. Churchill and A. V. Lowe,The Law of the Sea, 3d ed. (Manchester, 1999), 411; M. Hayashi, “Military and Intelligence Gathering

322 K. Bork et al.

Activities in the EEZ: Definition of Key Terms,” Marine Policy 29 (2005): 123, 125; and D. Kim, “AKorean Perspective,” Marine Policy 29 (2005): 157, 160.

45. “The United Kingdom Definition of Military Data Collection,” reprinted in S. Bateman,“Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scientific Research,”Marine Policy 29 (2005): 163, 173. See also Kim, supra note 44, at 160; and Roach, supra note 37,at 15 et seq.

46. See M. Gorina-Ysern, An International Regime for Marine Scientific Research (Ardsley,2003), at 295, pointing out that the classification as marine scientific research depends on openpublication and on the fulfillment of the requirements of UNCLOS Article 249. The last point,however, overlooks that the obligations in Article 249 are only of importance if an activity is alreadyclassified as marine scientific research. Furthermore, open publication is not a necessary requirementfor the application of UNCLOS Part XIII. See Wegelein, supra note 28, at 96. For a different view,see B. H. Oxman, “The Regime of Warships Under the United Nations Convention on the Law of theSea,” Virginia Journal of International Law 24 (1984): 809, 847.

47. Often civil research is financed by the military or the military undertakes oceanographicresearch projects that are similar to civil ones. See Francioni, supra note 44, at 226; and Wegelein,supra note 28, at 97.

48. See Gorina-Ysern, supra note 46, at 295.49. The Argo Project is part of the Global Ocean Data Assimilation Experiment (GODAE),

which in turn is part of the Global Ocean Observing System (GOOS). See The Structure, Mandatesand Modus Operandi of GOOS, Fifth Session of the IOC-WMO-UNEP Committee for the GlobalOcean Observing System (GOOS), (Paris, 28–30 June 2001), IOC-WMO-UNEP/I-GOOS-V/6; andReport of the ad hoc Working Group of Experts on GOOS-UNCLOS, Sixth Session of the IOC-WMO-UNEP Committee for the Global Ocean Observing System (GOOS), (Paris, 10–14 March2003), IOC-WMO-UNEP/I-GOOS-VI/9. See also the Web page of Argo at www.ucsd.edu.

50. Report by GOOS Project Office (GPO), “The ARGO Project Developments,” First Meetingof the Advisory Body of Experts on the Law of the Sea (ABE-LOS), (Paris, 11–13 June 2001),IOC/ABE-LOS I/10.

51. The data is available at the International Argo Information Centre (AIC) at wo.jcommops.org/cgi-bin/WebObjects/Argo.woa/1/wo/tOiId08oaWByo4JjoEAaWg/ 18.0.25.21.1.7.

52. GPO Report, supra note 50, at 4; and Argo Project Office, “An Array of ProfilingFloats Observing the Ocean in Real-Time,” 2006, S. 5, available at www-argo.ucsd.edu/Argo newbrochure.pdf.

53. Operational oceanography is defined as: “the activity of routinely making, disseminating,and interpreting measurements of the seas and oceans and atmosphere so as to provide continuousforecasts of the future conditions of the sea, provide a description of the present state of the seaincluding living resources, assemble long term climatic data sets to describe past states, and timeseries showing trends and changes.” GPO Report, supra note 50, at 5.

54. “Resolution 16 (Cg-VIII) adopted by the World Meteorological Organization at Its EighthCongress at Geneva in April/May 1979,” Doc A/CONF.62/80, 9 August 1979, Third United NationsConference on the Law of the Sea, Official Records, Vol. 7 (New York, 1980), 56.

55. A. Yankov, Report of the Chairman on the Work of the Committee, 46th Meeting—ThirdCommittee, Third Conference on the Law of the Sea, Official Records, Vol. 14 (New York, 1982),103.

56. “Statements by the President of the Conference and the Chairmen of the First and ThirdCommittee and the Drafting Committee,” Third Conference on the Law of the Sea, Official Records,supra note 55, at 15.

57. P. Ryder, Marine Scientific Research and Operational Oceanography in the Context of theUN Convention on the Law of the Sea, Sixth Session of the IOC-WMO-UNEP Committee for theGlobal Ocean Observing System (GOOS), (Paris, 10–14 March 2003), IOC-WMO-UNEP/I-GOOS-VI/10, at 20. See the debate in the Advisory Body of Experts on the Law of the Sea of the IOC,ABE-LOS, Advisory Body of Experts on the Law of the Sea, Sixth Meeting (Malaga, Spain, 3–7April 2006), IOC/ABE-LOSVI/3, at 6.


58. During the 134th Plenary Meeting, Yankov mentioned only that the provisions “would nothinder adequate meteorological coverage from ocean areas” (emphasis added). He did not excludethe applicability of Part XIII explicitly. A. Yankov, Third Conference on the Law of the Sea, OfficialRecords, supra note 55, at 15.

59. Jarmache, supra note 9, at 313 et seq.60. States are under an obligation to flag their vessels, UNCLOS, supra note 7, art. 91, whereas

such a duty does not exist for installations or equipment.61. Vessel and ship are used interchangeably.62. H. Esmaeili, The Legal Regime of Offshore Oil Rigs in International Law (Aldershot,

2001), 21; C. Fitzpatrick, Kunstliche Inseln und Anlagen auf See (Frankfurt am Main, 1998), 41; andD. P. O’Connell, The International Law of the Sea, Vol. 2 (Oxford, 1984), 747 et seq. Concerningtreaty practice, see Case Concerning Passage Through the Great Belt (Finland v. Denmark), I.C.J.Pleadings, Oral Arguments, Documents, Memorial of Finland, at 344 et seq.

63. Fitzpatrick, supra note 62, at 41; and O’Connell, supra note 62, at 748. See also PolpenShipping Co. v. Commercial Union Assurance Co. (1943) K.B. 161. An even broader definition wasused by Lord Finlay in the Lotus case, when he described a ship as a movable chattel of a very specialnature. The Case of the S.S. Lotus, September 7, 1927, Dissenting Opinion Lord Finlay, [1927] P.C.I.J.Rep., Ser. A, No. 10, at 53.

64. See C.-G. Hasselmann, Die Freiheit der Handelsschiffahrt (Kehl am Rhein, 1987), 64.65. See O’Connell, supra note 62, at 749.66. Convention on the International Regulation for Preventing Collisions at Sea, London 1972,

1050 U.N.T.S. 16, Rule 3(a) of the Regulations attached to the Convention.67. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other

Matters, London 1972, 1046 U.N.T.S. 120, art. 2(3).68. Protocol of 1996 to the Convention on the Prevention of Marine Pollution by Dumping

of Wastes and Other Matters Art 1972, 36 International Legal Materials 1, art.1(6); and, see in thiscontext also, the Convention for the Protection of the Marine Environment of the North-East Atlantic(OSPAR), Paris 1992, art. 1(n), available at www.ospar.org/.

69. ILO Convention (No. 22) Concerning Seamen’s Articles of Agreement (1926), art. 2 (a),available at www.austlii.edu.au/au/other/dfat/treaties/1935/18.html. See also ILO Convention (No.58) Fixing the Minimum Age for the Admission of Children to Employment at Sea (Revised 1936)(1936), art. 1, available at www.austlii.edu.au/au/other/dfat/treaties/1993/3.html; and ILO Convention(No. 15) Fixing the Minimum Age for the Admission of Young Persons to Employment as Trimmersand Stokers (1921), art. 1, available at www.austlii.edu.au/au/other/dfat/treaties/1935/16.html.

70. ILO Convention (No. 73) Concerning the Medical Examination of Seafarers (1946), art.1, para. 3(a): 200 BRT, available at www.austlii.edu.au/au/other/dfat/treaties/1996/5.html.

71. United Nations Convention on the Conditions for Registration of Ships, Geneva 1986, 26International Legal Materials 1229. This Convention, however, has not yet entered into force.

72. See District Court of Maryland, Presley v. Healy Tibbits Construction Co., 1988 A.M.C.1894, at 1897, stating that in order to be in navigation a vessel must be performing the function oftransporting people and things of commerce.

73. See, for example, Australian Shipping Registration Act 1981, part I, sec. 3, “capa-ble of navigating” available at www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/D9E56389C85E003FCA2571FF0019A734/$file/ShippingRegistration1981.pdf and United King-dom, Merchant Shipping Act 1995, sec. 313 (1), “used in navigation,” available at www.opsi.gov.uk/ACTS/acts1995/Ukpga 19950021 en 21.htm#mdiv313.

74. See, for example, Germany, Bundesgerichtshof, N.J.W. (1952) 1135; The Gas FloatWhitton No. 2 (1987) A.C. 337; Steedman v. Scofield, (1992) 2 Lloyd’s Rep. 163, at 165; andDistrict Court of the Southern District of Texas, Drilling Unit Sedco 135, 1982 A.M.C. 1461, at1472.

75. Merchants’ Marine Ins. Co. v. North of England P. & I. Assoc., (1926) 26 Ll.L.R. 201; TheGas Float Whitton No. 2, supra note 74, at 339; and Germany, Bundessozialgericht, BSGE 56, 157,para. 15 (“Schiffskorper, der fahig und dazu bestimmt ist, auf dem Wasser fortbewegt zu werden und

324 K. Bork et al.

dabei Personen und Sachen zu tragen”). See also United States, Oil Pollution Act of 1990, sec. 1001,available at epw.senate.gov/opa90.pdf.

76. Presly v. Healy Tibbits, supra note 72, at 1897.77. Bundesgerichtshof, supra note 74, at 1135.78. For example, Australian Navigation Act 1912, Vol. 1, part I, sec. 6, which excludes not

self-propelled offshore industry mobile units, available at www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/D880ABCC954F8177CA256FE7000722FA/$file/Navigationvol1 WD02.pdf.

79. For example, Canada, Regulations Respecting the Prevention of Pollution of Arctic Watersby Ships, sec. 2, available at www.tc.gc.ca/acts-regulations/GENERAL/a/awppa/regulations/001/awppa001/awppa001.html; France, Loi n. 76-600, art. 1, available at www.legifrance.gouv.fr/texteconsolide/UPEHQ.htm and Western Samoa, Exclusive Economic Zone Act 1980, sec. 2, avail-able at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/WSM 1980 Act.pdf.

80. See G. Lazaratos, “The Definition of Ship in National and International Law,” RevueHellenique de Droit International 22 (1969): 57, 93 et seq.

81. N. Papadakis, The International Legal Regime of Artificial Islands (Leiden, 1977), 100.82. The Great Belt Case, Memorial of Finland, supra note 62, at 358.83. Steedman v. Scofield, supra note 74, at 166.84. The Great Belt Case, Memorial of Finland, supra note 62, at 358.85. With respect to the requirement that a ship have as its primary purpose navigation, see The

Gas Float Whitton No. 2, supra note 74, at 343. See also R. v. Goodwin, [2006] 1 W.L.R. 546, para.33; and The Great Belt Case, Memorial of Finland, supra note 62, at 359, for further references.

86. Regarding autonomous underwater vehicles (AUVs), see E. D. Brown and N. J. J. Gaskell,The Operation of Autonomous Underwater Vehicles, Vol. 2 (The Society for Underwater Technology,2000), 94.

87. Presly v. Healy Tibbits, supra note 72, at 1897.88. Wegelein, supra note 28, at 140, n. 73.89. Esmaeili, supra note 62, at 42 with regard to artificial islands. See also Gundling, supra

note 28, at 226.90. “Report of the Chairman of the Drafting Committee,” A/CONF. 62/L.57/Rev. 1, 1 August

1980, in Third Conference on the Law of the Sea, Official Records, supra note 55, at 119.91. Wegelein, supra note 28, at 138.92. Pursuant to UNCLOS, supra note 7, art. 60, the coastal state has exclusive jurisdiction in

regard to artificial islands, installations, and structures in its EEZ. Because equipment is not included,it can be concluded that the coastal state does not possess exclusive jurisdiction concerning equipment.

93. A. Soons, Artificial Islands and Installations in International Law, Occasional Paper No.22 (1974), (Law of the Sea Institute, Rhode Island), at 3, defines installation in contrast to artificialislands as “construction resting upon the seafloor by means of piles or tubes driven into the bottom,and to concrete structures.”

94. B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea(Dordrecht, 1989), 108; Proelß, supra note 33, at 250 et seq.; and Wegelein, supra note 28, at 138.

95. Soons, supra note 30, at 235, who names the criterion of manning as one of the indices.96. Ibid., at 173, points out that only fixed or anchored installations are covered.97. Ibid., at 173.98. See Wegelein, supra note 28, at 138, naming the criteria time and size.99. Soons, supra note 30, at 232, describes free-floating installations and equipment in general.

100. See above text accompanying nn. 8–9.101. If a vessel refrains from conducting marine scientific research during passage through

territorial waters, the passage has to be considered innocent.102. UNCLOS, supra note 7, art. 17 indicates that the right of innocent passage attaches to

“ships of all States.”103. Ibid., arts. 40 and 45, for straits; and arts. 52 and 54, for archipelagic waters.104. Because profiling floats and gliders are not concerned with research on the continental

shelf, ibid., art. 80 will not be discussed.


105. Ibid., art. 258 is assumed to cover artificial islands and structures.106. Soons, supra note 30, at 234; and T. Treves, “Military Installations, Structures, and Devices

on the Seabed,” American Journal of International Law 74 (1980): 808, 841, with regard to devices.107. For the proposition that Article 246 is a notification regime, see W. Plesmann and V.

Roben, “Marine Scientific Research: State Practice Versus Law of the Sea?” in Law of the Sea atthe Crossroads: The Continuing Search for a Universally Accepted Regime, ed. R. Wolfrum (Berlin,1991), 392.

108. It is not the entry into the EEZ for which the consent is needed, but the conduct of marinescientific research. Therefore, if data sampling is not undertaken, the equipment can enter the EEZwithout prior permission.

109. Soons, supra note 30, at 165.110. According to UNCLOS, supra note 7, art. 246(5), the absence of diplomatic relations also

represents normal circumstances. Note Oxman, supra note 12, at 26.111. See J. Knauss, “Development of the Freedom of Scientific Research Issue of the Third

Law of the Sea Conference,” Ocean Development and International Law 1 (1973): 93, 105. Theformulation, however, could be construed to refer to pure research. See Yusuf, supra note 9, at 419.

112. It is argued that the reasons listed are conclusive, such that other reasons not listed maynot be brought forward by the coastal state. Nordquist et al., supra note 15, at 518. To the contrary,see Yusuf, supra note 9, at 420; and Mukherjee, supra note 9, at 104.

113. For the definition of “direct significance,” see Soons, supra note 30, at 170 et seq.114. See below, part D.III.2.115. Wegelein, supra note 28, at 116.116. Soons, supra note 30, at 181.117. For a detailed discussion of these duties, see Gorina-Ysern, supra note 46, at 333 et seq.118. Soons, supra note 30, at 203.119. See below, part C.IV.4.120. See generally, Brown and Gaskell, supra note 86, at 22; and Churchill and Lowe, supra

note 44, at 414.121. See IOC, “Draft [Practical] Guidelines,” supra note 3.122. G. Hafner, “Meeresumwelt, Meeresforschung und Technologietransfer,” in Vitzthum,

supra note 33, at 448. Caflisch and Piccard, supra note 11, at 889, agree, but point out that Article262 should be clarified.

123. Wegelein, supra note 28, at 150.124. Soons, supra note 30, at 237.125. For example, IMO Res. A. 671(16) 1989, Safety Zones and Safety of Navigation Around

Offshore Installations and Structures, adopted 19 October 1989. Although this Resolution deals onlywith installations and structures, it could still be useful in stipulating safety measures concerningfloats.

126. ITU Radio Regulations WRC 03, which prescribe regulations on telecommunication.127. See the propositions of Kenya, in Third Conference on the Law of the Sea, Official Records,

supra note 27, at 265; France, at 266; and Bulgaria, Poland, Ukrainian Soviet Socialist Republic,Union of Soviet Socialist Republics, at 265.

128. ISNT, Third United Nations Conference on the Law of the Sea, Doc. A/CONF.62/WP.8/PartIII, at 20.

129. Soons, supra note 30, at 234.130. Caflisch and Piccard, supra note 11, at 889.131. Ibid.132. Soons, supra note 30, at 234.133. Hafner, supra note 122, at 446.134. On this assumption, see Churchill and Lowe, supra note 44, at 413.135. Ibid.136. Ibid.

326 K. Bork et al.

137. See H. Meyers, The Nationality of Ships (The Hague, 1967), 90 et seq.; and M. Nu nez-Muller, Die Staatszugehorigkeit von Handelsschiffen im Volkerrecht (Berlin, 1994), 101 et seq.

138. This duty is mostly overlooked when the removal of installations is discussed. See Hafner,supra note 122, at 448; and Wegelein, supra note 28, at 241 et seq.

139. Such an obligation might, however, result from other international conventions such as theOSPAR Convention, supra note 68; the London Dumping Convention, supra note 67; and its 1996Protocol, supra note 68.

140. For a general survey on amendment procedures of UNCLOS, see D. Freestone and A. OudeElferink, “Flexibility and Innovation in the Law of the Sea—Will the LOS Convention AmendmentProcedures Ever Be Used?” in Stability and Change in the Law of the Sea: The Role of the LOSConvention, ed. A. Oude Elferink (Leiden, 2005), 169 et seq.

141. Ibid., at 181, suggests that basic principles are, among others, the principle of the commonheritage and the principle of peaceful use of the high seas embodied in Article 88.

142. On these developments in the 1960s, see Papadakis, supra note 81, at 195; and N. Papadakis,“Some Legal Problems Associated with the Ocean Data Acquisition Systems, Aids and Devices(ODAS),” International Relations 5 (1975): 825 et seq.

143. Preliminary Draft Convention on Ocean Data Acquisition Systems (ODAS), UN-ESCO/IMCO, Preparatory Conference of Governmental Experts to Formulate a Draft Convention onthe Legal Status of Ocean Data Acquisition Systems (ODAS), (31 January–11 February 1972, Paris),Summary Report, SC-72/CONF.85/3, Annex III.

144. Article 1, Preliminary Draft Convention, supra note 143. See also Article 1 of the latestdraft, Draft Convention on the Legal Status of Ocean Data Acquisition Systems, Aids and Devices(ODAS), Second Revision, Seventeenth Session of the IOC Assembly, (25 February–11 March 1993,Paris), IOC-XVII/Inf. 1, which defines ODAS as “a structure, platform, installation, buoy or otherdevice, not being a ship, together with its appurtenant equipment deployed at sea for non-militarypurposes essentially for the purpose of collecting, storing or transmitting samples and data relatingto the marine environment or the atmosphere or the uses thereof [. . . . ]” Because profiling floats andgliders are not ships, but rather platforms in the presented sense that store and transmit data of themarine environment, they have to be considered as ODAS.

145. Brown and Gaskell, supra note 86, at 3.146. However, during the 1972 Preparatory Conference, it was decided that the three Technical

Annexes (I–III) to the Draft Convention should be voluntarily used by member states as a guide whendeploying ODAS. See UNESCO/IMCO, Preparatory Conference of Governmental Experts, supranote 143, Annex II, Resolution 1.

147. For example, see the comment of the United Kingdom, Legal Status of Ocean DataAcquisition Systems, Aids and Devices (ODAS), Twenty-fifth Session of the Executive Council,(10–18 March 1992, Paris), IOC/EC-XXV/Inf. 3, at 5.

148. Resolution XII-9 of the IOC Assembly, Twelfth Session of the Assembly (3–19 November1982, Paris), SC/MD/73, Annex II, at 11–12.

149. Summary Report of Nineteenth Session of the IOC Executive Council (6–12 March 1986,Paris), IOC/EC-XIX/3, reproduced in Netherlands Institute for the Law of the Sea, DocumentaryYearbook, Vol. 2 (1986), 675, 695.

150. Summary Report of the Twenty-first Session of the IOC Executive Council, (7-15 March1988, Paris), IOC/EC-XXI/3, reproduced in Netherlands Institute for the Law of the Sea, DocumentaryYearbook, Vol. 4, (1988), 447, 471.

151. For the Draft Convention, see Legal Status of Ocean Data Acquisition Systems, Aids andDevices (ODAS), Twenty-fifth Session of the IOC Executive Council (10–18 March 1992, Paris),IOC/EC-XXV/Inf. 3, at 14 et seq.

152. Summary Report of the Twenty-fifth Session of IOC Executive Council (10–18 March1992, Paris), IOC/EC-XXV/3, reproduced in Netherlands Institute for the Law of the Sea,Documentary Yearbook, Vol. 8 (1992), 708, 735.

153. 1993 Draft Convention, supra note 144.


154. Summary Report of the Seventeenth Session of IOC Assembly (25 February–11 March1993, Paris), reproduced in Netherlands Institute for the Law of the Sea, Documentary Yearbook,Vol. 9 (1993), 850, 893.

155. Summary Report of the Twenty-seventh Session of IOC Executive Council, IOC/EC-XXVII/3 (10 August 1994), reproduced in Netherlands Institute for the Law of the Sea, DocumentaryYearbook, Vol. 10 (1994), 814, 833.

156. Summary Report of the First Session of the Open-Ended Intersessional Working Group onIOC’s Possible Role in Relation to the United Nations Convention on the Law of the Sea (IOC-LOS),(13–15 May 1996, Paris), IOC/INF-1035, at 5.

157. Resolution XIX-19 of the IOC Assembly, Reports of Governing and Major SubsidiaryBodies, Nineteenth Session of the Assembly (2–18 July 1997, Paris), Annex II, at 34–35.

158. Summary Report of an Informal Advisory Consultation on Implementation of IOCAssembly Resolution XIX-19, UNESCO (2–3 November 1998, Paris); Summary Report, Thirty-firstsession of the IOC Executive Council (17–27 November 1998, Paris), IOC/INF-1114.

159. ODAS Draft Convention, supra note 144, art. 2(3).160. Ibid., art. 3.161. Ibid., art. 9.162. Ibid., art. 11.163. Ibid., art. 12(1).164. Ibid., arts. 14–16.165. IOC, Resolution XX-6, supra note 2.166. IOC, The Advisory Body of Experts on the Law of the Sea (ABE-LOS), First Session

(11–13 June 2001, Paris), IOC/ABE-LOSI/3, at 15 et seq.167. IOC, Points of Interest, Fourth Meeting of the Advisory Body of Experts on the Law of the

Sea (IOC/ABE-LOS IV), (4–7 May April 2004, Lefkada, Greece), IOC/ABE-LOS IV/8; IOC, Draft(Rev. 2) of the Open-Ended Sub-group of IOC/ABE-LOS to Provide Advice on the Legal FrameworkWithin the Context of UNCLOS Which Is Applicable for the Collection of Oceanographic Data, FifthMeeting of the Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS V), (11–15 April2005, Buenos Aires, Argentina), IOC/ABE-LOS V/9.

168. IOC, The Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS), FourthSession, (4–7 May 2004, Lefkada, Greece), IOC/ABE-LOS IV/3, at 9 et seq.; and IOC, The AdvisoryBody of Experts on the Law of the Sea (IOC/ABE-LOS), Fifth Session (11–15 April 2005, BuenosAires, Argentina), IOC/ABE-LOS V/3, at 6 et seq.

169. IOC, Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS), Sixth Session(3–7 April 2006, Malaga, Spain), IOC/ABE-LOS VI/3, at 5 et seq.

170. IOC, Summary of Views on the Draft Practical Guidelines of IOC, Within the Contextof UNCLOS, for the Collection of Oceanographic Data by Specific Means, Seventh Meeting ofthe Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS VII), (19–23 March 2007,Libreville, Gabon), IOC/ABE-LOS VII/8.

171. The 2007 draft, IOC, Draft [Practical] Guidelines of IOC, Within the Context of UNCLOS,for the Collection of Oceanographic Data by Specific Means, Seventh Meeting of the Advisory Bodyof Experts on the Law of the Sea (IOC/ABE-LOS VII), (19–23 March 2007, Libreville, Gabon),IOC/ABE-LOS VII/7.

172. Ibid., para. 9(i).173. Ibid., para. 9(ii).174. Ibid., para. 9(iii).175. See discussions in ABE-LOS, IOC, Advisory Body of Experts on the Law of the Sea

(IOC/ABE-LOS), Sixth Session (3–7 April 2006, Malaga, Spain), IOC/ABE-LOS VI/3, Annex III,at 2.

176. Draft Practical Guidelines, supra note 171, para. 8.177. For an overview of GOOS, see IOC-WMO-UNEP, The Structure, Mandate and Modus

Operandi of GOOS, supra note 49.

328 K. Bork et al.

178. IOC, Resolution XXIII-8, Reports of Governing and Major Subsidiary Bodies, Twenty-third Session of the Assembly (21–30 June 2005, Paris), IOC-XXIII/3, Annex II, at 12.

179. See the Web site of the Argo Information Centre at http://wo.jcommops.org/cgi-bin/WebObjects/Argo.woa/1/wo/G89aM0t9XiXA1DUmobhqR0/1.0.3.11.

180. See the opinion of Argentina and Japan expressed in the IOC Executive Council, Thirty-ninth Session of the Executive Council (21–28 June 2006, Paris), IOC/EC-XXXIX/3, at 37.

181. IOC, Resolution EC-XXXIX-7, Executive Council, Thirty-ninth Session of the ExecutiveCouncil (21–28 June 2006, Paris), IOC/EC-XXXIX/3, Annex II, at 9.