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The Freedom of Scientific Research in International Law: Outer Space, the Antarctic and the Oceans

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The Freedom of Scientific Research in International Law: Outer Space, the Antarctic and the Oceans The Freedom of Scientific Research in International Law: Outer Space, the Antarctic and the Oceans. Item Type Thesis/Dissertation Authors Graham, Gerald Publisher University of Geneva Download date 02/10/2021 03:03:57 Link to Item http://hdl.handle.net/1834/17629 THE FREEDOM OF SCIENTIFIC RESEARCH in INTERNATIONAL LAW: Outer Space, the Antarctic and the Oceans Ph. D. Thesis No. 332, Gerald GRAHAM, Canada Université de Genève ©1981 by Gerald Graham [email protected] i La Commission mixte, compose des Doyens des Facultés de droit, des lettres, et des sciences économiques et sociales, et du Directeur de l'Institut universitaire de hautes études internationales, sur le préavis de MM. Georges ABI-SAAB, Lucius CAFLISCH, Philippe CAHIER et Christian DOMINICĒ, professeurs à l'Institut, autorise l'impression de la présente thèse sans entendre par là exprimer d'opinion sur les propositions qui y sont énoncées. Genève, le 15 juillet 1980 Pour la Commission mixte: Christian Dominicė Directeur de l'Institut universitaire Thèse Nº 332 ii ACKNOWLEDGEMENTS I wish to express my sincere gratitude to my Thesis Supervisor, Professor L. Caflisch, as well as to Professors G. Abi-Saab and P. Cahier, all of the Graduate Institute of International Studies, Geneva, for their assistance in the preparation of this doctoral dissertation. At the same time, I am indebted to a very large number of people, impossible to name here, for their advice, assistance and understanding. iii Table of Contents AUTHORISATION TO PRINT ( In French )………………………………………………………………………….i ACKNOWLEDGEMENTS…………………………………………………………………………………………………..ii TABLE OF CONTENTS……………………………………………………………………………………………….......iii ACRONYMS……………………………………………………………………………………………………………………vi PART ONE: INTRODUCTION…………………………………………………………………………………………….1 PART TWO: GENERAL PRINCIPLES REGULATING THE USE OF THE THREE AREAS……………16 CHAPTER I. Freedom of Access CHAPTER II. Peaceful Use CHAPTER III. Benefit of Mankind PART THREE: FUNDAMENTAL RULES RELATING SPECIFICALLY TO SCIENTIFIC RESEARCH…………………………………………………………………………………………………………54 CHAPTER I. Freedom of Scientific Research CHAPTER II. The Right to Conduct Scientific Research in Certain Zones of Jurisdiction CHAPTER III. Jurisdiction CHAPTER IV. The Right to Visit, Observe and Inspect PART FOUR: LIMITATIONS ON THE FREEDOM OR RIGHT TO CONDUCT SCIENTIFIC RESEARCH………………………………………………………………………………………………………168 iv CHAPTER I. Scientific Research and Sovereignty CHAPTER II. Non-Interference with Legitimate Use CHAPTER III. Preservation of the Environment PART FIVE: SPECIFIC OBLIGATIONS AS THEY PERTAIN TO SCIENTIFIC RESEARCH ACTIVITIES………………………………………………………………………………………………………207 CHAPTER I. The Duty to Notify CHAPTER II. The Duty to Consult CHAPTER III. The Duty to Facilitate the Conduct of Scientific Research CHAPTER IV. The Duty to Provide Mutual Assistance CHAPTER V. The Duty to Promote International Cooperation CHAPTER VI: The Duty to Publish PART SIX: MISCELLANEOUS RULES……………………………………………………………………………..260 CHAPTER I. Transfer of Science and Technology CHAPTER II. Responsibility and Liability CHAPTER III. Settlement of Disputes PART SEVEN: CONCLUSIONS………………………………………………………………………………………274 ANNEX I: INSTITUTIONAL MECHANISMS FOR INTERNATIONAL COOPERATION………….290 v ANNEX II: THE INTERNATIONAL GEOPHYSICAL YEAR………………………………………………….300 POST SCRIPTUM: THE ICNT REV. 2……………………………………………………………………………..303 BIBLIOGRAPHY…………………………………………………………………………………………………………..307 vi ACRONYMS Sources ILM International Legal Materials UNCLOS I First United Nations Conference on the Law of the Sea, 1958 UNCLOS III Third United Nations Conference on the Law of the Sea, 1974- SNT Single Negotiating Text RSNT Revised Single Negotiating Text ICNT Informal Composite Negotiating Text ICNT Rev. 1 Revised Informal Composite Negotiating Text (1) ICNT Rev. 2 Revised Informal Composite Negotiating Text (2) UNTS United Nations Treaty Series WARC World Administrative Radio Conference Organs CCIR International Radio Consultative Committee CETEX Committee on Contamination by Extraterritorial Exploration COPOUS Committee on the Peaceful Uses of Outer Space COSPAR Committee on Space Research CSAGI Comitė spécial de l'annėe géophysique internationale EEC European Economic Community ELDO European Organization for the Development and Construction of Space Launch Vehicles ESA European Space Agency ESRO European Space Research Organization FAO Food and Agriculture Organization IAEA International Atomic Energy Organization ICES International Council for the Exploration of the Sea vi ICJ International Court of Justice ICSPRO Inter-Secretariat Committee on Scientific Programs related to Oceanography ICSU International Council for Scientific Unions IHO International Hydrographic Organization ILC International Law Commission IMCO Intergovernmental Maritime Consultative Organization IOC Intergovernmental Oceanographic Commission ISA International Seabed Authority ITU International Telecommunications Union NASA National Aeronautics and Space Administration NATO North Atlantic Treaty Organization SCAR Scientific Committee on Antarctic Research SCOR Scientific Committee on Ocean Research SIPRI Stockholm International Peace Research Institute UNCTAD United Nations Conference on Trade and Development UNESCO United Nations Educational, Scientific, and Cultural Organization WMO World Meteorological Organization Programs GARP Global Atmospheric Research Program IAGP International Antarctic Glaciological Program IDOE International Decade of Ocean Exploration IGY International Geophysical Year LEPOR Long-term and Expanded Program of Oceanographic Exploration and research Miscellaneous LDCs Less-developed Countries ODAs Ocean Data Acquisition System 1 PART ONE: INTRODUCTION 1. General The subject of this thesis is the legal régime for scientific research in outer space, the Antarctic and the oceans. The purpose of it is to uncover the various rules for the conduct of such research, analyse them in terms of their legal basis, scope, nature and content, compare them and contrast them for each of the three areas, and, finally, to draw certain conclusions from them. The impetus for such a study is that notwithstanding certain fundamental differences between the three areas in question, both in terms of geography and of legal status, they are all to some extent or in varying degrees areas beyond national jurisdiction. Coupled with this, scientific research is an important activity in all three areas, and the conduct of this research is subject to a number of particular rules, the most widely recognised of which is the freedom of scientific research. The thesis is original partly in the choice of subject, and partly in the way the subject is approached. It is the first comprehensive examination of the regime for scientific research in the three areas. To be sure, the areas themselves have often been 2 examined collectively,1 and consequently it could not but be noticed that analogies exist, particularly as regards scientific research. Nevertheless, scientific research has never before been chosen as both starting point and focal point for a legal analysis of the three areas. Where scientific research in one or more of the three areas has been examined by international lawyers, it has often been given cursory treatment. This is particularly true for outer space, where the focus has been on use in general or at least on non-scientific use. Thus, this thesis examines such basic questions as: what scientific research is; what it involves; who may undertake it and under what conditions and ensuing obligations. The emphasis is on practical legal problems, which have been given concrete expression. In this sense, a concerted effort has been made to ascertain the actual practice of States in respect of scientific research, and cull from that practice whatever broad principles and particular rules seem to present themselves; in other words, the approach is inductive. Another feature of the thesis is the emphasis on treaty implementation, especially with respect to the 1959 Antarctic Treaty, but also with respect to international cooperation in outer space and practice in granting consent for marine scientific research in zones of national jurisdiction. Finally, the thesis is original in its application of certain concepts such as accommodation of conflicting use- common in the analysis of international law relating 1CW Jenks, The Common Law of Mankind, London, Stevens and Sons, 1958; J. Kish, The Law of International Spaces, Leiden, Sitjhoff, 1973. 3 to rivers and lakes, to outer space, the Antarctic and the oceans, with special emphasis on scientific research. Roughly twenty sets of rules which relate to scientific research are examined in the body of the thesis. Some apply to use generally, while others are specific to scientific research, e. g., publication of results. There is no entirely successful way of classifying these rules, in terms of, for instance, rules of cooperation versus rules of coexistence, or rights versus obligations. Nevertheless, there is a certain order and flow to the thesis, as well as a certain cohesion to the various parts. Thus, Part II comprises those general principles which are applicable to all use. Part III follows with treatment of the basic rules which lay the groundwork for scientific research. Part IV includes what might be loosely termed ‘rules of abstention‘ - those rules which proscribe a State from behaving in a certain way when conducting scientific research. By contrast, the rules contained in Part V are
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