PART I: DRAFT [PRACTICAL] GUIDELINES OF IOC, WITHIN THE CONTEXT OF UNCLOS, FOR THE COLLECTION OF OCEANOGRAPHIC DATA BY SPECIFIC MEANS

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1 Agenda item: 3.2 IOC/ABE-LOS VII/7 Paris, 19 February 2007 Original: English INTERGOVERNMENTAL OCEANOGRAPHIC COMMISSION (of UNESCO) SEVENTH MEETING OF THE ADVISORY BODY OF EXPERTS ON THE LAW OF THE SEA (IOC/ABE-LOS VII) Libreville, Gabon, March 2007 PART I: DRAFT [PRACTICAL] GUIDELINES OF IOC, WITHIN THE CONTEXT OF UNCLOS, FOR THE COLLECTION OF OCEANOGRAPHIC DATA BY SPECIFIC MEANS (Revised version of paragraphs 1 to 8 in Coordinator s Second Draft of 20 February 2006 as amended by suggested revision of 29 August 2006) A. [Background and objectives / Introduction / Context and justification] 1. These Guidelines are adopted for the [facilitation of] timely collection, provision and exchange of oceanographic data in recognition of the importance of international cooperation and involvement of IOC Member States in such activities as well as of the relevance of the collection of such observational data for enhancing knowledge of the ocean environment. 2. The Guidelines shall be interpreted and applied in the context of and in a manner consistent with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). [Nothing in the Guidelines shall prejudice the rights, jurisdiction and duties of States under the Law of the Sea, in particular UNCLOS, including its Part XIII.] (In Málaga, it was agreed to postpone further discussion on this paragraph to later time.)

2 2 3. [Accordingly / Among the consequences of the above,] any activity carried out in the framework of these Guidelines shall be conducted exclusively for peaceful purposes, in full compliance with the obligations of States to protect and preserve the marine environment, and with recognition of the importance of international transfer of marine technology for an effective global system of oceanographic data collection in which all interested IOC Member States can participate. 4. The Guidelines take into account and shall be applied consistently with Resolution XX-6 (1999) of the IOC Assembly on The Argo Project and Resolution XXII-6 (2003) on IOC Oceanographic Data Exchange Policy. 5. [Nothing in these Guidelines shall prejudice the right of States to establish amongst themselves other general, regional or bilateral arrangements for the collection of oceanographic data in conformity with UNCLOS.] 6. [No activities further to these Guidelines shall be perceived as prejudicing the positions of States, parties to a dispute concerning the delimitation of a certain maritime area. [If a notification under these Guidelines relates to such a disputed area, it shall be made to all the parties to the dispute.]] B. Definitions 7. For the purposes of these Guidelines: (iv) Oceanographic data refers to parameters featuring the state of the ocean at a certain precise time. It is routinely collected and distributed freely and openly in near-real time and used for monitoring and forecasting of ocean state, short-term warnings and weather forecasts (meteorology) as well as climate prediction. (Relevant physical (air and water temperature, currents, waves, wind, tides, rain, radiation, conductivity, pressure, bathymetry ) and chemical (salinity, oxygen, ph, chlorophyll ) parameters may appear in an Annex to the Guidelines to be updated as need be.) Float means an autonomous vehicle used for collection of such data as defined in subparagraph above and floating passively at a preprogrammed pressure level until at predetermined time intervals rising to the ocean surface to broadcast its position and, as the case may be, collected data to a satellite. Surface drifter means a buoy which is freely moving in ocean current either at the surface or at predetermined depths close to surface. It collects data on surface temperatures and may have additional sensors for collection of other parameters such as barometric pressure or wind condition. [ Expendable Bathythermograph (XBT) means an expendable temperature probe that is manually launched from a vessel along

3 3 specifically selected sea lanes. Deployment of XBTs consists of an expendable measuring probe, a launcher, and an electronic data acquisition unit. The information collected by the probe is relayed in real time to the data acquisition unit through a thin insulated conductive wire. Processed profile data can be transmitted in realtime through satellite.] In Málaga, it was agreed to postpone discussion on XBTs to later time. (v) (vi) Ships of opportunity means [any type of vessels] participating in a global network collecting oceanographic data which is transmitted in real-time and made available as specified in subparagraph above. [ Institution means a legal entity responsible for any specific project of collection of oceanographic data.] C. Scope of Application 8. [These Guidelines only apply to the collection of oceanographic data under the auspices of the IOC.] The Guidelines aim at the collection of oceanographic data through the conduct of following activities: the deployment by an IOC Member State or by an institution which has the nationality of an IOC Member State of floats and surface drifters in the high seas which may drift into the Exclusive Economic Zones ( EEZ ) of [other IOC Member States]; the deployment by an IOC Member State or by an institution which has the nationality of an IOC Member State of floats and surface drifters into the EEZs of [other IOC Member States]; [the deployment of Expendable Bathythermographs (XBTs) by ships of opportunity into the EEZs of [IOC Member States]]. In Málaga, it was agreed to postpone discussion on XBTs to later time. IN LACK OF TIME, THE REST OF THE DRAFT OF 20 FEBRUARY 2006 (PARAGRAPHS 10 TO 16) WAS NOT DISCUSSED PARAGRAPH-BY- PARAGARAPH IN MÁLAGA.

4 4 PART II: DRAFT [PRACTICAL] GUIDELINES OF IOC, WITHIN THE CONTEXT OF UNCLOS, FOR THE COLLECTION OF OCEANOGRAPHIC DATA BY SPECIFIC MEANS (Excerpt from Coordinator s Second Draft of 20 February 2006 with some amendments based on comments received, shown in italics as underlined. For paragraphs 1 to 9, see new PART I) D. Deployment [by an IOC Member State or by an institution which has the nationality of such a State] of [profiling] floats [and surface drifting buoys] in the high seas which may drift into the EEZs of [other IOC Member States] [10. Freedom of the high seas, as provided for in international law, comprises inter alia freedom to collect oceanographic data. Such collection of oceanographic data shall be conducted with due regard for other legitimate activities on the high seas.] Alternative A 11. The IOC Executive Secretary shall be notified at least [30/90 days] in advance of the deployment of [profiling] floats [and surface drifting buoys] in the high seas which may drift into the EEZs of [IOC Member States]. Such information, to be provided [through appropriate official channels by the IOC Member State which intends to deploy the floats [or buoys] or whose nationality the institution has which intends to deploy such floats) [or buoys]], shall include full description of (iv) (v) (vi) the physical features of the float [or the surface drifting buoy]: the nature, aim and objectives of the project or activity; the name of the [sponsor/operator] for the collection of oceanographic data, its address, [its director,] and the person in charge of the project; the date and coordinates of the deployment of the float [or buoy]; the kinds of data to be collected and methodology and equipment (sensors, etc.) to be used; measures to facilitate the coastal States concerned to participate in the collection of data. 11a. The IOC Executive Secretary shall promptly distribute the above information to all [IOC Member States concerned].

5 5 11b. The data collected by floats [and buoys] drifting into EEZs shall be available to [the IOC Member States concerned] through appropriate data exchange systems. Alternative B 11. An IOC Member State will be notified at least [30 days] in advance of the deployment of floats in the high seas which may drift into its EEZ. Such information, to be provided through the appropriate official channels by the IOC Member State which intends to deploy the floats or whose nationality the institution has which intends to deploy the floats, will include, at a minimum: the number of floats; the date and coordinates of the deployment of each float; detailed information on the data to be obtained by each float; (iv) a detailed description of each float to be deployed; (v) a detailed description of the nature and objectives of the project to which the deployment of the float is contributing; (vi) full information on governmental area or institution which intends to deploy the floats, including its legal nature, the name of its director, and the curriculum vitae of the person in charge of the project / alternative: the name of the coastal State, and the donors, and the institution or organization responsible for organising and leading the collection of the oceanographic data as well as the name of the coastal State at the receiving end of the oceanographic project, and of the designated local contact institution; (vii) identification number of each float and a web page address or similar reference which allows a real-time follow-up by the coastal State of its trajectory. 11a. With the previous agreement of the coastal State, the IOC Executive Secretary will promptly distribute the above information to all interested IOC Member States. [11x. Paragraph on Coastal State verification of compliance with above requirements and authorization of the entry of floats.] [11y. Possible paragraph on Coastal State denial of entry of floats having impact on natural resources.] [11z. Possible paragraph on exceptional situations where the above procedure may not apply (e.g. referring to transfer of technology or cooperation schemes involving the coastal State in the deployment of floats).] E. Deployment [by an IOC Member State or by an institution which has the nationality of such a State] of [profiling] floats and surface drifting buoys into the EEZs of [other IOC Member States]

6 6 Alternative A 12. [Coastal IOC Member States] shall be notified at least [60 days] in advance of any deployment of [profiling] floats or surface drifting buoys for the collection of oceanographic data into their EEZs. The communication shall be made [through appropriate official channels by the IOC Member State which intends to deploy the floats or buoys or whose nationality the institution has which intends to deploy such floats or buoys]; 12a. Such communication shall include the information identified in paragraph 11 above. 12b. The data collected by floats and surface drifting buoys deployed into EEZs shall be available to [the IOC Member States concerned] through appropriate data exchange systems. Alternative B 12. A text corresponding to paragraph 11 (Alternative B) above with a longer notification time. Alternative C 12. The deployment of floats and surface drifting buoys for the collection of oceanographic data into EEZs shall be subject to the previous consent of the coastal States concerned. 12a. Any operator willing to deploy floats and surface drifting buoys into EEZs shall submit its request to the competent authorities of the coastal States concerned at least [6 months] in advance of any deployment. 12b. Such communication shall include the information identified in paragraph [11 above]. 12c. The coastal State shall, in normal circumstances, grant its consent for the deployment of floats and surface drifting buoys for the collection of oceanographic data into its EEZ. The coastal State shall be deemed to have authorised that deployment if no explicit reply is provided within [4 months]. 12d. The coastal State shall be deemed to have authorised the deployment of floats and surface drifting buoys for the collection of oceanographic data into its EEZ if that deployment is part of an international project of activity in which the coastal State participates. 12e. The data collected by floats and surface drifting buoys deployed into EEZs shall be available to the coastal States concerned through appropriate data exchange systems / alternative: The institution leading the project on data collection shall admit the nation that gives consent for deployment of the floats and drifting buoys in its EEZ

7 7 direct participation in the project, grant access to the results, and assist in their interpretation if so requested.. F. Deployment of Expendable Bathythermographs (XBTs) by ships of opportunity into the EEZs of [IOC Member States] In Málaga, it was agreed to postpone discussion on XBTs to later time. [Alternative A 13. Ships of opportunity used in deployment of XBTs into the EEZs of [IOC Member States] shall be identified at least [30 days] in advance of the commencement of such activity by [the operators of data collection] with the IOC Executive Secretary. The IOC Executive Secretary shall maintain an electronic data base of such ships, including full description of (iv) the ships s name, tonnage, type, class and [State of registry / IMO ship identification number] as well as the number of persons aboard (crew and scientific personnel); the name of [the sponsoring institution] for the collection of oceanographic data, its address, [its director,] and the person in charge of the project; the ship s routes of operation; description of the XBTs to be deployed and the kinds of data to be collected. 13a. [All IOC Member States] shall have access to the data base. 13b. The IOC Executive Secretary shall without delay bring any new entry to the data base to the attention of [the IOC Member States concerned]. 13c. The data collected by the XBTs shall be available to [the IOC Member States concerned] through appropriate data exchange systems. Alternative B 13. The IOC Member State which is the flag State of a ship of opportunity used in the deployment of XBTs into the EEZ of another IOC Coastal State will provide through the appropriate official channels to both such IOC Coastal State and to the IOC Executive Secretary, at a minimum, the following information, at least [60] days before the date of the deployment. (iv) (v) full data of the ship, including its name, tonnage, type and class; full information on the institution responsible of the intended deployment of the XBTs, including its legal nature, the name of its director, and the curriculum vitae of the person in charge of the project; the number of XBTs to be deployed the date and coordinates of the deployment of each XBT; a detailed description of each XBT to be deployed;

8 8 (vi) (vii) a detailed description of the nature and objectives of the project to which the deployment of each XBT is contributing; the ship s routes of operation, with the best possible detail. 13a. With the information referred to in paragraph 1, the IOC Executive Secretary will maintain an electronic data base. All IOC Member States shall have access to the data base. [13x. Paragraph allowing the Coastal State concerned to verify data collected by the XBTs.] [G. Responsibility and liability 14. There shall be responsibility and liability over the activities for the collection of oceanographic data subject to these Guidelines in accordance with the provisions of Article[s] 263 [and 235] of the UN Convention on the Law of the Sea and general international law.] H. Final provisions 15. In cooperation with IOC Member States, the IOC Executive Secretary should report [regularly] to the Governing Bodies of the IOC on the application of these Guidelines. 16. These Guidelines may be revised at the request of the IOC Assembly.

9 9 PART III: DRAFT [PRACTICAL] GUIDELINES OF IOC, WITHIN THE CONTEXT OF UNCLOS, FOR THE COLLECTION OF OCEANOGRAPHIC DATA BY SPECIFIC MEANS (Indication of a further alternative to paragraphs 10 to 16 in the Coordinator s Second Draft of 20 February 2006, based on later comments) D. Deployment by an IOC Member State or by an institution which has the nationality of an IOC Member State of floats and surface drifters in the high seas which may drift into the EEZs of [other IOC Member States] [10. Freedom of the high seas, as provided for in international law, comprises inter alia freedom to collect oceanographic data. Such collection of oceanographic data shall be conducted with due regard for other legitimate activities on the high seas.] 11. Alternative A of the Second Draft (20 February 2006) as brought in line with current practice (comments by the Netherlands). E. Deployment by an IOC Member State or by an institution which has the nationality of an IOC Member State of floats and surface drifters into the EEZs of [other IOC Member States] 12. Alternative A of the Second Draft (20 February 2006) as brought in line with current practice (comments by the Netherlands). F. Final provisions 13. In cooperation with IOC Member States, the IOC Executive Secretary should report [regularly] to the Governing Bodies of the IOC on the application of these Guidelines. 14. These Guidelines may be revised at the request of the IOC Assembly.