Considering legal issues for marine scientific research
It has been reported in the newspaper that JOIDES Resolution, a US marine research ship of A&M University of Texas, wants to carry out scientific explorations in the Bangladesh maritime territory from November 29, 2014 to January 29, 2015. The US embassy in Dhaka has written to the foreign ministry, seeking its permission in this regard. Such interest from international organization indicates that we are going to forward one step in the utilization of our blue resources for boosting our blue economy.
As a developing nation, in the present context, there is no alternative to cooperation from international organizations, institutions and experts to conduct marine scientific research in the maritime territory of Bangladesh. Indubitably, such interest from international institutions for conducting marine scientific research in our maritime territory is a significant signal for sustainable utilization of our blue resources and we have to respond to such an offer. Before reviewing response, it is important to identify the legal issues associated with marine scientific research in the light of international laws.
Marine Scientific Research (MSR) has been dealt with under United Nations Convention on the Law of the Sea (UNCLOS)1982. It is a term applied to a range of scientific disciplines (such as physics, biology, chemistry, geology, and geophysics) concerned with the study of the ocean. Maritime scientific research conducted by any other state or competent international organizations within our maritime zone is a subject of consent of our country.
In this regard, Bangladesh can enter into a contract with international organizations through bilateral and multilateral agreement. There can be private agreement between researching State (Bangladesh) with the research oceanographer or with the university or institution where he or she is employed. Bangladesh should ensure favourable conditions for the conclusion of agreements, contracts and other similar arrangements, under equitable and reasonable conditions.
According to Article 248 of UNCLOS, competent international organizations which intend to undertake marine scientific research in the exclusive economic zone or on the continental shelf of a coastal State (Bangladesh) shall, not less than six months in advance of the expected starting date of the marine scientific research project will provide full descriptions of the project such as the nature and object of the project, the method and means to be used, the precise geographical areas in which the project is to be conducted etc. According to the report published in the independent newspaper, the US research ship wants to study in our maritime territory from November 29, 2014, to January 29, 2015. It is confusing whether the US authority has provided necessary descriptions of the research project within stipulated time as specified in article 248 of UNCLOS. If it does not do so, it will not be wise to permit such research project. Because Bangladesh will not get sufficient time to evaluate the project description.
However, particular issues are to be taken into consideration before approving any state or competent international organizations to conduct marine scientific research in our maritime territory. The first issue that should be taken into consideration is access to MSR data, samples and results. According to article 249 of UNCLOS, competent international organizations when undertaking marine scientific research in the exclusive economic zone or in the continental shelf of a coastal State shall provide with preliminary reports, the final results and conclusions after the completion of the research. International organizations will facilitate access to all data, samples and results derived from the marine scientific research project. Bangladesh should ensure its right to access to such MSR data, samples and results.
The second issue is the proprietary title over MSR data, samples and results. One of the limitation of the UNCLOS 1982 is that it has not dealt with proprietary title over Marine Scientific Research data, samples and results. If we approve the international marine scientific research activities for example in case of US research ship, we have to claim our ownership over the MSR data, samples and results come out from such MSR activities. Determining ownership over the MSR data, samples and results in case of blue biotechnology or MSR projects that do not directly bear on the exploration or exploitation of marine resources but yield data, samples and results leading to the potential commercialization of marine products or processes is more important. Blue biotechnology concentrates on aquaculture and seafood supply enhancement, commercial and industrial production of marine substances and processes, controlling the proliferation of noxious water-borne organisms, and developing new drugs and cosmetics etc. The potential market value for these industrial uses has been assessed at us$ 3 billion per year. So if we allow others to conduct blue biotechnological research or other MSR activities that don't bear on the exploration of marine resources but yield data, samples and results that can be used for producing products having commercial value, we have to claim proprietary title on such data, samples and results. These property rights determine who owns the product of human intellect. As the proprietary title over MSR data, samples and results have not been dealt under UNCLOS, it should be regulated under domestic and international intellectual property laws and under the private agreement to be formed between Bangladesh and foreign researching entity or persons.
The third issue that must be taken into consideration is to ensure effective protection for the marine environment and to control damage to health and safety from harmful effects which may arise from such MSR activities. To this end Bangladesh shall adopt appropriate rules, regulations and procedures.
Bangladesh in pursuant to Article 246 of UNCLOS will insert provisions in the MSR agreement that it in its discretion can withhold its consent to the conduct of a marine scientific research in its exclusive economic zone or the continental shelf of it. Our participation or representation in the marine scientific research project is to be ensured. Bangladesh should also seek an assessment of MSR data, samples and research results or assistance for the assessment or interpretation of such data.
How dispute concerning maritime scientific research and issues associated with it particularly marine environment, patent and copyright are to be settled must be inserted in the agreement to be formed between Bangladesh and foreign States or organizations. This may be subject to settlement of disputes mechanisms under UNCLOS, or may result in disputes of such a global nature as to trigger dispute settlement proceedings before the World Intellectual Property Organization (WIPO) as well as the World Trade Organization (WTO).
One of the important reasons of economic backwardness is that we have lack much of the technology and that without a substantial transfer of the technology our development in maritime sectors will not be achieved adequately. In order to overcome this impediment, we need international cooperation to conduct marine scientific research and transfer of marine technology. In this regard, the complex legal issues associated with it should be emphasized firmly.
The writers are Professor and Lecturer at the Department of Law, World University of Bangladesh, respectively.
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