The Practice of Small Island Developing States on the Consent Regime for Marine Scientific Research: Developing and Reframing the Law of the Sea in Changing Circumstances

Date of Award

2024

Document Type

Thesis

Degree Name

Doctor of Philosophy in Maritime Affairs

Specialization

Ph.D (Maritime Affairs)

Campus

Malmö, Sweden

Abstract

The 1982 United Nations Convention on the Law of the Sea (LOSC) seeks to reconcile competing interests in marine scientific research (MSR) within areas under national jurisdiction through the consent regime. Amidst the heightened focus on the limited capacity of Small Island Developing States (SIDS) to undertake the necessary MSR to maintain their livelihoods, it has been suggested that the consent regime for MSR could offer support in enhancing the scientific and technological capabilities of SIDS. However, the framework's fitness for purpose in light of changing circumstances has been questioned. Within this context, this thesis analyzes the influence of SIDS in developing and reframing the consent regime for MSR under the LOSC.

To achieve this objective, the study undertakes a stepwise process answering four research questions. It begins by defining the objective and purpose of MSR consent, followed by an examination of the State practices of 31 SIDS across the Caribbean, Pacific, Indian, and Atlantic regions regarding the MSR consent regime from 2005 to 2020. The study then identifies tools employed by SIDS to adapt the MSR consent regime to changing circumstances. Finally, it ascertains principles and concepts to restore and maintain the balance sought in the MSR consent regime under the LOSC in light of evolving circumstances. These changing circumstances include techno-scientific advances impacting MSR and developments in other areas of international law, notably related to the environment and biodiversity, postdating the adoption of the LOSC.

As a point of departure, the Third World Approaches to International Law (TWAIL) provide background for the study, also serving as the motivation to scope the study to focus on SIDS. Different methods were used in each step to obtain and analyze the relevant information to respond to each research question. These include (i) documental analysis; (ii) questionnaires; and (iii) a review of international law, law of the sea, and MSR scholarship.

The findings emphasize the role of the MSR consent regime in supporting the scientific and technological capabilities of SIDS. The study concludes that the consent regime remains operational, with SIDS employing diverse tools to integrate legal and techno-scientific advancements therein. Cooperation and “reasonableness” emerge as significant legal concepts to sustain the required balance within the MSR consent regime under the LOSC. This study contributes to legal scholarship by exploring the adaptability of the LOSC over time in response to State practice, as well as in light of scientific and technological advances. At the same time, it advances the integration of social science and empirical methods in legal studies. Furthermore, it enhances the TWAIL movement by exploring SIDS perspectives, an area that has not been extensively investigated within the movement.

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