TIMBANG TARA 38/ EX TIMBANG TARA SSG11E DESIGNATING A PARTICULARLY SEA AREA WITHIN EEZ, EFFECT AND LIMITS OF OTHER STATES CONDUCTING MARINE SCIENTIFIC RESEARCH TIMBANG TARA 38/ MEMBERS LT CDR RASHID ABDUL KAREEM LEADER LT CDR MOHD ZULKIFLEE BIN MARKAM RMN LT CDR RASID BIN MAT RMN LT CDR SALEEM JAILANI BIN SHAHUL HAMEED RMN LT CDR MOHAMAD ZAMRI BIN ISMAIL RMN LT CDR ABDUL RAZAK BIN AHMAD RMN LT CDR RASHID ABDUL KAREEM LEADER LT CDR MOHD ZULKIFLEE BIN MARKAM RMN LT CDR RASID BIN MAT RMN LT CDR SALEEM JAILANI BIN SHAHUL HAMEED RMN LT CDR MOHAMAD ZAMRI BIN ISMAIL RMN LT CDR ABDUL RAZAK BIN AHMAD RMN TIMBANG TARA 38/ SCOPESCOPE Intro Aim & Scope Background Description Analysis Recommendation Conclusion Question TIMBANG TARA 38/2009 4 555 INTROINTRO The control of the oceans currently regulated by the 1982 UNCLOS effecting since November 16, Estb the principle of a 200 nm limit on a nation's EEZ, allow nation controls the undersea resources, primarily fishing and seabed mining from baseline shore. EEZ apply freedom of navigation for the shipping community, naval forces, the fishing industries and marine scientific research (MSR). The degree of control to be exercised by a supra-national regulatory authority over MSR both in terms of the extent of coverage its scope and content Debate occur between those states preferred few restrictions on MSR and those wish for a more paternalist approach. TIMBANG TARA 38/ INTRO cont The interests of coastal states, commonly wished to retain or expand rights in their EEZ and continental shelf. The interests of land locked states wish to participate in MSR. The changes in law proposed in the Montego Bay Convention: If inducted into customary international law by means of state practice, would prove to be far-reaching. The Montego Bay Convention proclaims the right of all state to conduct MSR. The duty of the states and competent international organization to promote it but subject to other legitimate uses of the sea. TIMBANG TARA 38/ The Star 23 September 2007 TIMBANG TARA 38/ AIM & SCOPE AIMSCOPE To discuss openly on the issues affecting and limiting the conduct of MSR in EEZ, and how states enjoy sovereignty subject to certain limitations in EEZ Research covers the designating a particularly sea area within EEZ, effect and limits of other states conducting MSR. TIMBANG TARA 38/ BACKGNDBACKGND Under UNCLOS 1982, the define area of Territorial Sea until EEZ and continental shelf as shown below: TIMBANG TARA 38/ BACKGNDBACKGND Military affairs most directly tied to a nation's daily concerns to the economic activities and in support of its economic security. The protection of ports, trade goods and transportation services are of paramount importance. A maritime nations economy also includes the fishing grounds of the shallow waters above the continental shelf along the coast. The development of undersea technologies with respect to seabed petroleum and mineral resources and the increased demands for seafood have made it necessary to update the laws governing maritime space. Many nations that border on the oceans of the world do not have the financial resources or military power to constantly watch over their adjacent sea. TIMBANG TARA 38/ BACKGNDBACKGND The delimitation of EEZ between states, opposite or adjacent coasts has to be carried out through a parties agreement iaw international law in order to achieve as in the words of Article 38 The Statute of the International Court of Justice (ICJ) an equitable solution. The goal is to achieve an equitable solution Many states advocated that a single maritime boundary valid for both the EEZ and the continental shelf should be drawn. This provision alone has generated many delimitation disputes brought before the ICJ. The philosophy behind regulation of MSR in the Convention is further complicated by the difference in thought between the developed and developing world. TIMBANG TARA 38/ OVERLAPPING CLAIMS TIMBANG TARA 38/ BACKGNDBACKGND The scientific and technological capabilities required to conduct MSR are divided between the two: The Industrialised nations (Developed States) Sophisticated scientific and technological capabilities Holding a wide view on MSR and desiring that regulation should reflect an approach Desire no restriction on research conducted in the high seas, such a term to be widely defined In contrast the developing states, Suspicious of the developed nations claim that they had unlimited freedom to conduct research in the vast areas of the oceans that fell within the scope of the high seas, Feared the exploitation of the marine resources and the commercial exploration of the sea would be to their economic disadvantage Concerned upon stricter regulation of sources of marine pollution would inhibit the speed of industrialisation TIMBANG TARA 38/ DESCRIPTION - EEZ Rooted in the 1945 Truman Proclamations the national claims which several Latin American countries such as Chile, Peru and the Santiago Declaration of nd Truman Proclamation influenced ocean-related policies in Latin American countries, especially states that it is appropriate for the United States to establish conservation zones, whereby fishing activities have been or in the future may be developed. Expressions patrimonial sea or EEZ was first used in the early 1970s in regional meetings and organizations in Latin America, the Caribbean, Asia and Africa. The concept of an extended EEZ for economic purposes was used in the late 40s and early 50s. TIMBANG TARA 38/ DESCRIPTION EEZ cont Generally a states EEZ extends to 200 nm (370 km) out from its coast. The exception to this rule occurs when EEZ would overlap that is, state coastal baselines are less than 400 nm (740 km) apart. When an overlap occurs, it is up to the states to define the actual boundary. Generally, any point within an overlapping area defaults to the most proximate state. The EEZ overlap the contiguous zone, states also have rights to the seabed of the continental shelf up to 350 nm (650 km) from the coast. TIMBANG TARA 38/ DESCRIPTION MSR MSR. Marine scientific research around the global serves a variety of purposes. Productive MSR is necessary for the exploitation of the ocean resources. In 20 th century the MSR became very important as essential source of information for verity fields. The major contribution of MSR includes the acquisition of knowledge and development of understanding about the marine environment, its characteristics, properties and processes Alfred H.A. - Defined MSR as any study or related experimental work designed to increase the mans knowledge of the marine environment. TIMBANG TARA 38/ DESCRIPTION MSR MSR considered one of the freedoms of high seas. Regarded as powerful tool for states due to the value that may be derived from this information for military purposes, conservation purposes and exploitation of marine resources. Advantages of MSR are taken by capable and technologically advance states to use such knowledge for their economic and military benefits The developing states feared that if MSR was undertaken by industrialised state to gather information for resource exploitation Fearing the state would be even stronger bargaining position during negotiations for concession contracts and other resource related licenses. TIMBANG TARA 38/ DESCRIPTION MSR MSR must be conducted for peaceful purposes exclusively with appropriate scientific methods and means Should not unjustifiably interfere with other legitimate use of the ocean UNCLOS includes, creating favourable condition for research, sharing information and integrating scientists efforts as well as scientific data and research resulting knowledge. TIMBANG TARA 38/ ANALYSISANALYSIS The conduct of MSR, important to understand what the origins of EEZ. World War II - Only two maritime jurisdictional zones were recognised beyond internal water a three nautical miles territorial sea and, beyond it the high seas. The third law of the sea negotiation was primarily focused on reconciling these economic interests while preserving the right of maritime powers. The territorial sea was set at 12 nm and 200 nm EEZ was recognized for the purposes of protecting sovereign coastal state rights to resources. TIMBANG TARA 38/ ANALYSISANALYSIS In situation of countries have different interpretation of UNCLOS details such disagreement can and do lead to conflict and confrontation. The high seas before 1982 was the outer edge of territorial sea when EEZ was not exist. Since 1982, the high seas have been explicitly defined as beginning of the outer edge of EEZ. Nevertheless US Navy has referred to the EEZ as international water for purposes of navigation, rather than as EEZ. the term of international water as used by United State in this instance is not a correct legal terms. This interpretation leads to confrontation between USA and other countries such as China TIMBANG TARA 38/ ANALYSISANALYSIS Beijing accused the US navy of carrying out illegal spying operations within China's EEZ. No doubt the Impeccable was gathering intel for the US navy on its Chinese counterparts. The incident took place some 75 miles south of China's Yulin naval base on Hainan Island. The Impeccable is a purpose-built surveillance vessel equipped with sophisticated sonar systems that can track Chinese sub based at Yulin. The USNS Impeccable, the survey vessel involved in a confrontation with small Chinese navy and fishing vessels on March 8, Washington insisted that the Impeccable had been conducting legitimate activities in international waters, but Beijing accused the US navy of carrying out illegal spying operations within China's exclusive economic zone. TIMBANG TARA 38/ ANALYSISANALYSIS Breaching of international law is the subject of debate. Beijing claims, such military operations are banned within its 200 miles EEZ under the 1982 UNCLOS. The US, unlike China has not ratified the Convention, disagrees with the Chinese interpretation and continues its intelligence- gathering op. Whether or not the US has the legal right to engage in such activities, their purpose is hardly benign. American officials emphasized that the Impeccable was unarmed and operated by civilian contractors, the vessel was never in danger. As for being civilian-operated, the Impeccable works directly with the US navy and was involved in a major naval exercise in the Western Pacific in 2007 involving three aircraft carriers. TIMBANG TARA 38/ MILITARY USE OF EEZ MSR taken by military agencies which considered out of the peaceful use frame Reconnaissance activities may considered to be in the grey areas surrounding hostile intent or threat of force The different in technology: Challenges to the coastal state does not have a sufficient technology to detect the user states vessels or aircraft, moot the issue The 1982 convention provide adequate guidance regarding the activities or should we rely on customary rules and states practice? There is a different between military surveillance, MSR and spying. Later caused possibly lead to hostile intent TIMBANG TARA 38/ MILITARY USE OF EEZ The military activities in the EEZ show an increasing rate during the last decade 2 main theories: Firstly the small costal state normally focused on exercise their naval assets in their EEZ in order to show present to protect the nation interest. Meanwhile the major power states conduct such operation in other states EEZ which consider military process to gain and gather intelligence. Better understanding of the legitimacy of such activities, understanding the role of terminology in law regime as described by Alexander S. Skaridov. Definitions of terminology are the key to the application of the Law of the Sea. Definitions of a term can be determined from its generic characteristics and specific differences. Using this method, military hydrographical surveys are not a threat of use of force. TIMBANG TARA 38/ MILITARY USE OF EEZ The concept of military surveying became a regular phenomenon The hydrographical surveying and MSR in the EEZ conducted under the terms of UNCLOS, however with that recent trends with technology - the utility of hydrographical data and state practice suggest that hydrographical surveying in the EEZ should be under the jurisdiction of the coastal states. Some countries carry out military hydrographical survey activities in the EEZ of coastal states without their permission. With believes in a military sense, as a type of battlefield preparation and becomes a threat of force against those countries, thus violating the principle of peaceful use of the sea. The military activities was an issue during the negotiation of the UNCLOS text in During the discussion its appear that some costal state such as Malaysia, India and Pakistan contend that other state to carry out military exercise or manoeuvre in other EEZ without consent. Meanwhile, maritime power such as United States insists on the freedom of military activities in EEZ such activities like freedom of navigation, military research and surveillance. TIMBANG TARA 38/ RESTRICTED AREA The coastal states can designate or declare particular area in her EEZ in order to restrict the use of these particularly sea area in particular period of time. This defiantly will impose a constraint on the use of EEZ for MSR and also will limiting the freedom of navigation for both military, commercial ships and aircrafts. Under this action the researcher argued is it under the right of jurisdiction in EEZ or costal states use it as a tool to prevent other state use. The fear of military use of such research lead some state to use restricted area mechanism to minimise the military exercises and intelligence gathering activities conducted by other countries in her EEZ. This became an area of debates. TIMBANG TARA 38/ RESTRICTED AREA The Restricted Areas, either for security, economic or hydrographical reasons. The Restricted Areas for security reasons should be limited for a certain period when the coastal state itself conducting its own military exercises in the area. Restricted Areas for economic reasons may have a longer period of application, particularly if it involves the exploitation of the resources of the area. (fisheries or mineral resources of the continental shelf). Restricted Areas for hydrographical reasons may be relatively permanent in view of the limited possibilities for navigation in that area, such as in the Dangerous Grounds in the South China Sea where navigational charts, hydrographical and environmental data have not been very extensive. TIMBANG TARA 38/ RESTRICTED AREA Developing states sought to extend their jurisdiction and control over large areas of what had formerly been the high seas. The wished to include it within the scope of regulation, the right to regulate the conduct of MSR, through a narrow definition of MSR, and incorporate complex provisos, including the right to refuse permission for MSR to take place at all. Some states, constrained by national or international quota limits, may not be able to obtain their desired level of exploitation, especially in areas designated a marine protected area. This states may seek to exceed the threshold of their quota under cover of a research programme. Pursued by the Japanese in their scientific whaling programme and an attempt by Japan to exploit the resources of southern blue fin tuna past their quota limits TIMBANG TARA 38/ RESTRICTED AREA Similar practices have been pursued in relation to espionage and intelligence missions or for economic gain by aggressive states who wish to circumvent restrictions on undertaking military activity The mission of the Glomar Explorer in the 1970s demonstrated an attempt by the United States to undertake a secret intelligence operation under the cover of a Deep Ocean Mining Project One aspect of this op was the search for manganese nodules was used as cover for the raising of a soviet nuclear submarine that had sunk on the sea floor in 1968. TIMBANG TARA 38/ PEACEFUL PURPOSE The concept of peaceful purposes is a cornerstone in the philosophy underlying the Convention, particularly MSR The key principle has never been comprehensively defined. Found in Articles 240/246(3) of Part XIII, but owing to the reluctance of maritime nations to control their armament and nuclear capabilities, a comprehensive formula was never settled upon it The concept was introduced in relation to MSR to appease territorializes, keen to control military manoeuvres, exercises and testing inside littoral states EEZ Never been determined due to the view of maritime nations who advocated an approach that stated that peaceful military activities were not, prima facie banned by international law. TIMBANG TARA 38/ PEACEFUL PURPOSE The interpretation of any peaceful purposes in the Convention has led to inconsistencies in interpretation The interpretation of the ambit of military activities of course, led to considerable debate due to interpretation of Article 58 and the uncertain development of state practice with respect to residual rights in the EEZ Activities such as military testing of military devices and military exercises have proved particularly contentious One school of thought takes view that such activity would lead to endangering the proper advancement of MSR and the marine environment The opposing view claim the Convention has no jurisdiction to restrict any military activity that does not amount to a threat or use of force in accordance with the UN charter under Article 2(4) TIMBANG TARA 38/ RECOMMENDATIONRECOMMENDATION Showing and given mark of respects to the related nation claims on the EEZ. An appropriate permission should be acquired and obtain by all means to remark the respect on the claimant of EEZ to avoid suspicious, distrust and anger could led to the conflict. The gap of developing and developed country is so huge. Commonality in economy and military need activities exist. Consideration others right on simlar EEZ area should be regarded. TIMBANG TARA 38/ CONCLUSIONCONCLUSION Current development of the need of natural resources for every littoral states economy sustainability and nation building related to the MSR. It may conclude as implies on both side in positive and negative impact Positive sign if both nations could estb an agreement on allowing others to conduct MSR within the grey area for benefit of joint exploration and development on resources by bilateral cooperation and sharing the wealth. The positive engagement on this matters will avoid tension and able to prosper and develop both nation. The denial of some super power nation to had more gain in economy within certain area including the others littoral states EEZ will neglect the right of others. The matters occurred on both nations signing or refuse to sign and acknowledge the UNCLOS 1982 TIMBANG TARA 38/ CONCLUSIONCONCLUSION Differential interpretation on various article in UNCLOS lead to the intention to gain more advantages by almost each nations. MSR was carried out by capable states to gain more interest in economy or military for the benefit of individual nation. The race on MSR within others EEZ in particular without appropriate concern lead to tension In the context of some military activity on MSR within other nations EEZ should be avoidable. It only benefit for country conducting it for the purpose of battle space preparation from the others views The clear objective on such activities could deceive the MSR reason and concept for humankind peaceful purposes TIMBANG TARA 38/ QUESTIONS ?