This is a simplification of Article 246(3).

　

 This is a restatement of Article 246(1), (2), and (5a). However it substitutes "use" for "significance" for the exploration and exploitation of natural resources, and adds "conservation and management" to exploration and exploitation of living and non-living resources. 'Use' is a narrower term than 'significance' and thus provides a looser regime for the foreign State. On the other hand, adding 'conservation and management' significantly broadens coastal State jurisdiction in keeping with the spirit of its rights under Article 56(1a). In any case, the coast State is not obligated to give its consent and could easily argue that conservation and management are "of direct significance for the exploration and exploitation" of its living and non-living resources per Article 246(5a) and thus deny consent if the research focuses on conversation and/or management.

　

 The consent regime for marine scientific research established in Article 246(2) and (5) makes no distinction between surface ships, underwater vehicles and aircraft. This Guideline recognizes the technological advances that make possible marine scientific research from aircraft. The Guideline could also be interpreted as including satellites as well, although they are not specifically named because obtaining detailed knowledge of their data gathering and enforcement against it would be difficult.

　

 Concerns were raised that some foreign States may not be fulfilling their obligations to provide the information required by Article 248 to the coastal State as well as the opportunity to participate in research projects required by Article 249(1a). This Guideline is simply a reminder of the foreign States' obligations regarding marine scientific research in coastal State's EEZs.

　

 This is undoubtedly the most controversial provision in the Guidelines as there is a growing dichotomy of positions among important countries.

　

 "Survey" activities seem to be distinguished in the 1982 UNCLOS from (marine scientific) research activities¹⁵⁶. Article 19(2) refers to "research or survey activities"; and Articles 21(1) and 40 mention "marine scientific research and hydrographic surveys (survey ships)". Part XIII is devoted solely to MSR, with no reference to surveys. To some this indicates that survey activities do not fall under the regime of Part XIII¹⁵⁷. Nowhere, however, is there any specific provision regulating survey activities.

　

 Generally two types of surveys are distinguished:

 "Hydrographic surveys", which are generally "to obtain information for the making of navigational charts and safety of navigation, and includes determination of one or more of several classes of data in coastal or relatively shallow areas − depth of water, configuration and nature of the natural bottom, directions and force of currents, heights and times of tides and water stages, and hazards of navigation − for the production of nautical charts and similar products to support safety of navigation," and "Military surveys", which "refer to activities undertaken in the ocean and coastal waters involving marine data collection (whether or not classified) for military purposes, and can include oceanographic, marine geological, geophysical, chemical, biological and acoustic data. Equipment used can include fathometers, swath bottom mappers, side scan sonars, bottom grab and coring systems, current meters and profilers¹⁵⁸." "While the means of data collection used in military surveys may sometimes be the same as that used in MSR, information from such activities, regardless of security classification, is intended not for use by the general scientific community, but by the military¹⁵⁹."

　

 The United States takes the position that the conduct of surveys in the EEZ of a foreign coastal State is an exercise of the freedom of navigation and other internationally lawful uses of the sea under Article 58(1), and therefore not subject to coastal State regulation. The United States has responded along these lines to other States which have questioned such survey activities in their EEZs¹⁶⁰. Also the US Department of the Navy states that the coastal nations cannot regulate hydrographic surveys or military surveys conducted beyond their territorial sea, nor can they require notification of such activities¹⁶¹.

　

 Yet some of the scientific information and data obtained by military surveys may obviously be of great value for commercial exploitation. For example, the detailed naval side-scan sonar charts have, when released, proved invaluable to geologists searching for volcanically active rift zones potentially rich in metallic sulfides. Should such information relate to the seabed of a foreign coastal State's EEZ, its discriminatory release to the private sector, particularly without the knowledge of the coastal State itself, could be considered inconsistent with Article 300 on good faith and abuse of rights. Thus there is some overlap in data collected in marine scientific research.

　

 Similarly trends in technology and the greater need for hydrographic data have brought hydrographic surveying and marine scientific research closer. Indeed, hydrographic data now has much wider application than safety of navigation, and some of its uses are associated with the rights and duties of a coastal State in its EEZ. Thus similar considerations would now seem to apply to the conduct of hydrographic surveying in the EEZ as apply to the conduct of marine scientific research in that zone.

　

 The distinction between different categories of surveying and marine scientific research hinges on more than intent and the purpose of collecting the data. The potential economic value and utility of the data to the coastal State must also be considered. And is very difficult to argue that hydrographic data collected today will not have some value in the future¹⁶². A possible criterion for consent might recognize both intent of the activity and value of the data collected.

　

 India and China have taken a position on this issue which directly contradicts that of the United States and the United Kingdom. In March 2001, India lodged protests with the United States and United Kingdom over violations of its EEZ by military survey ships¹⁶³. A more serious challenge to the exemption of hydrographic and military surveys from coastal State jurisdiction came from China, which reportedly enacted in December 2002 a law, elaborating on its 1998 law on EEZ, stating that any "survey or mapping activities" cannot include State secrets or hurt the State, and that all such surveys must have prior permission¹⁶⁴. Earlier, in September 2002, China reportedly lodged protest with the US Government charging that the USNS Bowditch had conducted monitoring and reconnaissance activities without its approval in its EEZ. The vessel, according to press reports, was engaged in hydrographic surveys some 60 miles off the Chinese coast, was buzzed by Chinese patrol planes and received threats to leave the area¹⁶⁵. China appears to believe that "military hydrographic survey" activities in the EEZ are, in a military sense, a type of battlefield preparation and thus a threat of force against the coastal State, thus violating the principle of peaceful use of the area¹⁶⁶.

　

 Further clarifications are needed as to the exact contents of China's law and the intention of related pronouncements before making any judgment. But if the law requires all hydrographic and military surveys in its EEZ to obtain prior permission, it is clearly contrary to the strongly-held position of the United States, and could become a source of serious tension in the future. It would be desirable, therefore, for concerned States to begin a dialogue with a view to clarifying their positions and finding possible solutions. In the meantime, however, adherence to this Guideline could help avert dangerous incidents. Nevertheless, the collection of data by a ship during a passage (be it a research vessel or not) that is required solely for the safe navigation of the ship, such as depth sounding and wind speed and direction, is not to be regarded as either MSR or a survey activity¹⁶⁷.

　

 Since these Guidelines suggest a consent regime for hydrographic research similar to that for marine scientific research, Article 246(3) and (5) under Part XIII Marine Scientific Research should apply to hydrographic research as well.

　

 This Guideline recognizes that hydrographic surveys can now be undertaken from aircraft, AUVs, ROVs and even satellites. However, detection of, and enforcement against the latter would be difficult.