46
Y. Jin
The first is the changes in the content and categories of freedoms of the high seas.
As above-mentioned, the freedom has developed from four types to six types which
for example are respectively set forth in Article 2 of the Convention on the High Seas
and Article 87 of the UNCLOS.
The second is the restriction suffered by the State when exercising the four specific
types of freedom in the UNCLOS. It shows the UNCLOS’s development of sea areas
from being dual (the territorial sea or the high seas) to being multiplex (the territorial
sea, archipelagic waters, exclusive economic zone/continental shelf, and the high
seas) and the requirement of diversity of protected interests.
16 For example, according
to Paragraph 1 of Article 56 of the UNCLOS, the coastal State has jurisdiction with
regard to the establishment and use of artificial islands, installations and structures
as well as marine scientific research, and such jurisdiction is exclusive (Paragraph 2
of Article 60 and Paragraph 2 of Article 146).
17
The third is whether in the Convention on the High Seas or in the UNCLOS, the
State shall, in exercising its freedom of the high seas, have due regard for and take
due account of other States’ interests of exercising the freedom of the high seas.
18
For example, Articles 1 and 2 of the Convention on the Continental Shelf regarding
the scope of the continental shelf and the purpose of the coastal State of exploring
and exploiting natural resources and regulation on exercising sovereign rights over
the continental shelf not only break through the dual structure that all areas except
the territorial sea are the high seas, but also throw away the traditional doctrine of
absolute freedoms of the sea. In other words, the principle of freedom of the high
seas goes through from the stage of laissez-faire (absolute freedom) to the stage of
due regard (relative freedom). Such change and development are also influenced by
16 For example, Article 1 of the Convention on the High Seas and Article 86 of the United Nations
Convention on the Law of the Sea.
17 With regard to marine scientific research, Article 240 of the United Nations Convention on the
Law of the Sea sets forth both the content and the principles and Paragraph 2 of Article 246 of
the United Nations Convention on the Law of the Sea indirectly shows its definition. Article 5 of
the Convention on the Continental Shelf , according to the nature of marine scientific research,
divides it into two types: the first one is the basic marine research just for scientific purpose, i.e.
purely marine scientific research; the second one is the practically marine scientific research for the
economic purpose of exploring and exploiting resources of the continental shelf. Meanwhile, the
requirements for the two different natures of marine scientific research are different. For the purely
marine scientific research, the principle of freedom of the high seas may be applicable only when
the research is carried out with the intention of open publication; for the practical marine scientific
research , the consent of the coastal State shall be obtained. In addition, the coastal State shall not
normally withhold its consent if the request is submitted with a view to purely scientific research
into the physical or biological characteristics of the continental shelf; while the coastal State has a
great discretion in approving or rejecting the application for practically marine scientific research.
See Yamamoto (2000).
18 The articles in the system of the United Nations Convention on the Law of the Sea concerning
due regard including reasonable regard and special consideration are Paragraph 4 of Article 27,
Paragraph 2 of Article 56, Paragraph 3 of Article 58, Paragraph 2 of Article 87, Article 147 to
Article 149.
Y. Jin
The first is the changes in the content and categories of freedoms of the high seas.
As above-mentioned, the freedom has developed from four types to six types which
for example are respectively set forth in Article 2 of the Convention on the High Seas
and Article 87 of the UNCLOS.
The second is the restriction suffered by the State when exercising the four specific
types of freedom in the UNCLOS. It shows the UNCLOS’s development of sea areas
from being dual (the territorial sea or the high seas) to being multiplex (the territorial
sea, archipelagic waters, exclusive economic zone/continental shelf, and the high
seas) and the requirement of diversity of protected interests.
16 For example, according
to Paragraph 1 of Article 56 of the UNCLOS, the coastal State has jurisdiction with
regard to the establishment and use of artificial islands, installations and structures
as well as marine scientific research, and such jurisdiction is exclusive (Paragraph 2
of Article 60 and Paragraph 2 of Article 146).
17
The third is whether in the Convention on the High Seas or in the UNCLOS, the
State shall, in exercising its freedom of the high seas, have due regard for and take
due account of other States’ interests of exercising the freedom of the high seas.
18
For example, Articles 1 and 2 of the Convention on the Continental Shelf regarding
the scope of the continental shelf and the purpose of the coastal State of exploring
and exploiting natural resources and regulation on exercising sovereign rights over
the continental shelf not only break through the dual structure that all areas except
the territorial sea are the high seas, but also throw away the traditional doctrine of
absolute freedoms of the sea. In other words, the principle of freedom of the high
seas goes through from the stage of laissez-faire (absolute freedom) to the stage of
due regard (relative freedom). Such change and development are also influenced by
16 For example, Article 1 of the Convention on the High Seas and Article 86 of the United Nations
Convention on the Law of the Sea.
17 With regard to marine scientific research, Article 240 of the United Nations Convention on the
Law of the Sea sets forth both the content and the principles and Paragraph 2 of Article 246 of
the United Nations Convention on the Law of the Sea indirectly shows its definition. Article 5 of
the Convention on the Continental Shelf , according to the nature of marine scientific research,
divides it into two types: the first one is the basic marine research just for scientific purpose, i.e.
purely marine scientific research; the second one is the practically marine scientific research for the
economic purpose of exploring and exploiting resources of the continental shelf. Meanwhile, the
requirements for the two different natures of marine scientific research are different. For the purely
marine scientific research, the principle of freedom of the high seas may be applicable only when
the research is carried out with the intention of open publication; for the practical marine scientific
research , the consent of the coastal State shall be obtained. In addition, the coastal State shall not
normally withhold its consent if the request is submitted with a view to purely scientific research
into the physical or biological characteristics of the continental shelf; while the coastal State has a
great discretion in approving or rejecting the application for practically marine scientific research.
See Yamamoto (2000).
18 The articles in the system of the United Nations Convention on the Law of the Sea concerning
due regard including reasonable regard and special consideration are Paragraph 4 of Article 27,
Paragraph 2 of Article 56, Paragraph 3 of Article 58, Paragraph 2 of Article 87, Article 147 to
Article 149.