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No.4 ,Politics  Dec 04, 2010

PROTECTING THE SEAS

INTERVIEWER What is your view of the recent flap over the Senkaku Islands from your perspective as an expert on international maritime law? A problem also emerged in 2005 involving a dispute between Japan and China over development of gas fields in the East China Sea. What sort of legal framework exists for settling disputes over territory and resources?

KURIBAYASHI TADAO International law recognizes the right of each sovereign state to protect the territory to which it can assert a legitimate claim and the surrounding waters so as to assure its existence and the survival of its people. When it comes to sovereignty over the Senkakus, though there is room for dispute on a number of points under international law, I believe that most international legal scholars in Japan currently support the Japanese claim. But it’s extremely difficult to rely on judicial procedures for settlement of territorial disputes under international law.

In the case of the development of gas fields, the dispute is not over territory per se but rather over how to determine the boundary of the continental shelf and the two countries’ exclusive economic zones [EEZs]. The East China Sea is relatively narrow–less than 400 nautical miles across–and so if both Japan and China claim the continental shelf and EEZs extending 200 nautical miles, their claims overlap. Japan’s position is to divide the EEZs along the line halfway between the two countries, while China claims that its continental shelf extends as far as the Okinawa Trough, located just to the west of Okinawa and the rest of the Nansei [Ryūkyū] Islands. But there are still no fully developed principles for determining maritime boundaries under international law. The rulings of international courts have tended to be in Japan’s favor, but at this point we can’t say definitively which side is right.

In the past, maritime issues were handled under procedures like those used to settle economic disputes–the ordinary mechanisms for settlement of conflicts between states. This meant relying initially on diplomatic negotiations between the countries involved and, if that approach failed to work, turning to the International Court of Justice as the ultimate arbiter. But the United Nations Convention on the Law of the Sea, which was concluded in 1982, provided for the establishment of the International Tribunal for the Law of the Sea, and it proposed a special set of procedures for settlement of maritime disputes. These call for parties who are unable to settle disputes through negotiations or arbitration to submit to a compulsory settlement; they have the options of taking the case to the International Court of Justice or of submitting to arbitration by ITLOS or another designated forum. Eleven years ago, Australia and New Zealand complained that Japan was overfishing southern bluefin tuna in the name of “supplementary experimental fishing,” and the case was taken to an international court. I won’t go into the details, but the ruling was in favor of Japan, which asserted that disputes under regional agreements like the Convention for the Conservation of Southern Bluefin Tuna are not automatically subject to compulsory settlement procedures under UNCLOS.

ITLOS, which is located in Hamburg, Germany, has been taking up many cases seeking the prompt release of ships that have been impounded for fishing inside other countries’ 200-mile limits [EEZs] in return for the payment of a bond. It has already issued a number of rulings on such cases involving Japanese fishing vessels seized after entering Russia’s 200-mile zone.

So various arrangements have been established, centering on UNCLOS, for settlement of disputes specific to the seas. But in an international community made up of sovereign states, countries are capable of excluding matters from compulsory settlement by tribunal–such as in the case of disputes with major political or military ramifications or in cases where two countries clash over the dividing line between their territorial waters or EEZs or the boundary of the continental shelf below the waters. Even more countries are likely to refuse to submit to an international tribunal in a dispute involving sovereignty over territory. For example, Takeshima is now effectively controlled by South Korea [which calls the island Dokdo], and when Japan once proposed to submit the case to the International Court of Justice, South Korea refused to have the issue taken up as a sovereignty dispute under international law. I believe that some may take the view that disputes like this are not amenable to judicial settlement.

So it’s extremely difficult to reach a legal settlement of disputes like the one concerning sovereignty over the Senkakus. Particularly in view of the region’s historical background and the sentiment of people in other Asian countries, it seems likely that the problem will be settled in a political forum, and in fact the handling of the matter has shifted to the diplomatic arena. I believe we’re at a stage where diplomatic sagacity is called for.

The Significance of UNCLOS

INTERVIEWER What are the changes and the trends in recent years with respect to the legal order concerning the sea?

KURIBAYASHI The foundation of the current maritime order lies in UNCLOS, the Convention on the Law of the Sea adopted by the United Nations in 1982. I personally witnessed the debate leading up to the adoption of this convention over a ten-year period at the United Nations. The discussions started when many countries assembled with the aim of creating a new law of the sea based on the recognition that changes in the global political and economic situations, along with technological advances and ensuing problems, were having a major impact on the sea.

On the political front, the 1960s brought the admission to the UN of developing countries one after another, which led to the voicing of complaints about the traditional order dominated by the advanced countries. And in terms of change on the economic front, I still clearly remember the comment made by one African participant at a conference, which went like this: “A big convoy of Japanese fishing vessels shows up off the coast of our country and sweeps up the fish.” In other words, the view emerged that only advanced countries with abundant funds and technology–specifically, countries with fishing fleets–can take advantage of the “freedom of the seas” guaranteed by the existing legal order. The adoption of 200-nautical-mile EEZs was partly motivated by the desire of the developing countries to shut out the advanced countries and use the waters off their coasts for their own economic benefit.

As for technological advances and ensuing problems, a shared awareness emerged regarding the importance of moves to prevent overfishing by big convoys of ships equipped with modern equipment and pollution of the seas resulting from accidents involving huge oil tankers.

About 160 countries have ratified UNCLOS. The only advanced country that hasn’t yet ratified it is the United States, where resistance to the idea of restraints on seabed resource development seems to run deep. But even the United States recognizes almost all the provisions of UNCLOS as customary law, and so the covenant may be said to be almost universally applicable.

Of course, UNCLOS doesn’t deal with all the issues, as we see in the underdeveloped state of mechanisms for setting maritime boundaries. Also, the regime for seabed development was created initially on the basis of discussions that considered only mineral resources; there was no thought given to the living marine resources that have now become the target of attention from the genetic industries of the advanced countries. The conference at which the covenant was negotiated involved an extremely raw form of grasping by countries for actual maritime interests, and it wasn’t an occasion for the creation of a fully formed paradigm for joint management of the world’s seas.

Since UNCLOS was concluded, however, all sorts of treaties aimed at management of the seas have arisen. Treaties concerning protection and conservation of the maritime environment have been drafted one after another under the auspices of the International Maritime Organization and other institutions, and UN treaties have been adopted to limit and manage fishing on the open seas. The Earth Summit [United Nations Conference on Environment and Development] in 1992 set forth the principle of sustainable development and adopted Agenda 21, which proposed an action plan for integrated management of the seas and encouraged each country to establish or improve decision-making mechanisms concerning management of their coastal and marine areas.

Opening Up Half-Closed Seas

KURIBAYASHI The adoption of UNCLOS also had a downside, however. It expanded the scope of continental shelves and introduced a regime based on the new concept of the exclusive economic zone. This split up the seas and meant that countries’ claims for jurisdiction over their coastal waters could overlap. As a result, disputes have sprung up between neighboring countries over their conflicting claims, as in the case of the gas fields in the East China Sea.

There are issues involving other newly established treaties as well. Here in Asia, for example, though a few countries, such as Japan, China, and India, have ratified the protocol concerning prevention of maritime terrorism, we don’t see many other countries following suit. This is because most countries lack the ships and funds required to implement this agreement–and also lack interest in the matter. Developing countries have their hands full already with the management of their 200-mile zones, including such issues as controlling piracy and preventing marine pollution. Even a country like Japan, which has a high level of maritime security capabilities, finds it difficult to keep an eye on its entire 200-mile zone. Virtually no country can catch the perpetrators of every crime on the seas or pursue every case involving protection of the marine environment. It’s important for the advanced countries to help the developing countries improve their maritime security capabilities. Japan’s undertakings in this connection include providing patrol boats to Indonesia to fight piracy and offering training for groups of coast guard personnel from other Asian countries.

Asia’s seas are half closed. This may not be apparent from the maps we’re used to looking at, but if you look at maps centered on China and Korea it becomes quite clear. Japan is positioned in a way that blocks their exits to the Pacific. So the Chinese are probably quite desperate in pursuing their strategy to gain access to the high seas. And further to the south we find the seas dotted with countless islands, where people in neighboring countries live in proximity to the waters they share. So the seas in Asia aren’t a broad and open expanse geographically; furthermore, the political and economic factors relating to them are extremely complex. We need to come up with a comprehensive system appropriate to the tasks of managing these seas as a whole and achieving maritime security. And I think this approach is suited to East Asia.

Though we mustn’t get too optimistic, we do see some signs of movement toward multilateral cooperation in this area. For example, PEMSEA [Partnerships in Environmental Management for the Seas of East Asia] is bringing together partners from the public and private sectors for activities including the sharing of information and exchanges of opinion among Japan, China, South Korea, and Southeast Asian countries concerning management of coastal waters.

Also, for many years Japanese ships, including big tankers carrying oil from the Middle East, have accounted for the largest volume of freight being shipped through the Strait of Malacca, one of the world’s key shipping lanes, and the Japanese Shipowners’ Association and others have provided funds to establish and operate the Malacca Strait Council, which supports the management of this strait by the three nations that border it: Malaysia, Indonesia, and Singapore. Soon, however, China will outstrip Japan in terms of the volume of shipments through this strait, and South Korea is also coming on strong. It’s interesting to note in this connection that Article 43 of UNCLOS calls for user states and states bordering on a strait to cooperate in preventing pollution and assuring safe navigation. If one looks just at the general wording of this short article, it seems to refer to the dozens of straits around the world, but it was clearly drafted with the Strait of Malacca in mind.

So about two years ago a new cooperative mechanism was established for this strait, based on discussions among three bordering countries and Japan, China, South Korea, and other user states. A variety of tasks need to be carried out in connection with the management of this strait, including the clearing away of sunken vessels, the provision of aids to safe navigation, such as buoys and lighthouses, and dredging of channels. These tasks have been assigned as projects to particular countries, with Japan taking care of lighthouses, for example, and China dealing with sunken ships, and the relevant countries have been providing funds and offering technical assistance. An international cooperative regime has been formed that also includes nonstate actors that benefit from navigation through the strait, such as the global shipping industry and the oil industry. It’s extremely noteworthy that countries aren’t just providing money and leaving it at that but are involved in building a system through which all those concerned work together to manage an international strait.

Reconsidering the Value of the East China Sea

KURIBAYASHI What does it mean to “manage” the seas? This is a somewhat vague area. Some people prefer to use the term governance rather than management when discussing this topic in English. The Agenda 21 to which I referred earlier calls for countries to work at integrated management of the seas, but it offers no definition of management. What we can say, though, is that in this context management refers not to controlling the seas and nature but rather to regulating the activities of human beings who deal with the seas.

The meaning of the term integrated is a bit clearer. Before UNCLOS, ordinary treaties concerning the seas dealt separately with territorial waters, international waters, continental shelves, protection of living resources in international waters, and other topics. Countries were able to ratify just those treaties that matched their national interests; this was a situation full of “outs.” But issues relating to the sea involve various interrelated factors, and so the UN General Assembly moved to bring all the agreements together in a single treaty and have as many countries as possible ratify it. This was UNCLOS.

On a more specific level, the idea that management of the seas should be integrated means that issues relating to the sea should not be separated from issues relating to the land. The sea and the land are interdependent both naturally and in terms of social activities. For example, industrialization can result in pollution that is carried by rivers to the sea. Conversely, cleaner mountains, forests, and rivers mean healthier marine environments. The piracy off the coast of Somalia needs to be fought because it results in attacks on commercial vessels and injury or loss of life. But it’s clear that the poverty and political instability of Somalia are behind this pirate activity, so to get to the root of the problem we need to tackle issues on the land.

Another feature of integrated management is the involvement of nonstate actors, as seen in the Strait of Malacca. In the case of Tokyo Bay as well, it’s hard to hope for improvement of the status quo without the involvement of local government bodies and volunteers alongside the national government.

A final point is that I believe we are no longer in an age when use of the seas can center just on the zones of individual states. This may sound idealistic, but the seas are shifting from being a place that can be used just through states to being a place where we aim to realize value on a regional and global level.

Japan and China have been trying to find a way to develop the resources of the East China Sea jointly. Unfortunately the two countries haven’t reached a final agreement, but I believe the direction of their efforts is correct. At this point the countries bordering the East China Sea are focusing their interest just on the field of resource development, but if we take another look at the value of this sea, we find that it’s a place of biological diversity that’s also suited to tourism. The countries in question should get away from their “Keep out of my yard” mentality and work together to find the safest and most appropriate routes for navigation through this sea. There are also environmental issues, like the Echizen jellyfish that are said to originate off the coast of China as the result of chemicals that are carried into the sea by rivers; they grow huge and then move north. In dealing with issues like this within a confined sea, I think it’s crucial for each of the countries involved to recognize its own role and responsibilities.

In the context of the shift from “freedom of the seas” to “management of the seas,” we’ve reached the stage where we must earnestly seek an integrated approach to development and utilization of the East China Sea based on liaison and cooperation among all the parties involved, including South Korea and Taiwan, as well as Japan and China.

Moving Beyond National Borders

INTERVIEWER In closing, would you tell us about your perspective calling for “protecting the seas”?

KURIBAYASHI Right after UNCLOS was adopted, I returned to Japan and wrote an essay criticizing the bureaucratic sectionalism of the Japanese government. I felt that Japan needed to come up with an integrated approach to ocean policy in keeping with global trends. At the time my opinion attracted almost no attention, but about five years ago, when the issue of the gas fields in the East China Sea came to the fore, interest in ocean policy increased both among politicians and in the business world. Fortunately, through cooperation among politicians, civil servants, business leaders, and academics, the Basic Act on Ocean Policy was enacted in 2007, based on a bill submitted by a group of legislators.

Following the adoption of UNCLOS in 1982, Japan’s ocean policy lagged considerably behind that of other countries, but the adoption of this basic act contributed substantially to eliminating the bureaucratic sectionalism within the government in this area. Ever since Japan opened up and embarked on a modernization drive in the mid-nineteenth century, it had been content simply to have freedom to fish and to navigate on the high seas, and it had focused mainly on protecting these interests. This fit in with the “freedom of the seas” concept espoused by the advanced countries. The situation changed dramatically from the 1960s on, but Japan continued to be complacent. I think Japanese people had the idea that the seas were protecting them.

What we need is the idea that we protect the seas. Until recently people thought of security mainly in terms of national defense. But now the concept has broadened to include human security and environmental security–a comprehensive approach that includes everything relating to human survival. So we need to think vigorously about security of the oceans as a whole in the broad sense of the term, with a view not just to military defense but also to navigation, development of resources, protection of the environment, and scientific research activities.

We now see an emerging international consensus that the oceans need to be clean and peaceful, and we need to enrich this concept. What sort of political will can we build here in Asia? What sort of measures should we formulate and implement in order to protect the seas? I feel the first step we need is political action.

International society now revolves around sovereign states, of which there are about 190. I call this aspect “phase 1”: an international society in which countries face off across jealously defended borders. But there is also a “phase 2”: a society of the human race, transcending national borders. The political and military power and decision-making authority are now with phase 1, but as human rights take hold and economic interaction becomes more vigorous, it’s quite possible that phase 2 will emerge to the point of causing phase 1 to recede in relative terms.

The obsession of Japan and China with their territorial issues may be inevitable under phase 1, but I hope people will strive to develop phase 2. In order to avoid such conflicts, I believe it is important for us to have a vision of security for human beings and, as a long-term undertaking, to build a cooperative framework with a view to the future.

Translated from “Kaiyō no atarashii anzen hoshō o kōsō suru,” Sekai, December 2010, pp. 133-39, ©2010 by Kuribayashi Tadao. Translated and published with permission of the author c/o Iwanami Shoten, Publishers. [December 2010]

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