Ocean Governance and A View Toward Multinational
Security Cooperation in Ocean Space
Tsutomu Fuse

Paper prepared for the conference on“Maritime Security in Southeast Asia and Southwest Asia”

Institute for International Policy StudiesTokyo
11–13 December 2001

Ocean Governance and A View Toward Multinational Security
Cooperation in Ocean Space
Tsutomu Fuse, J.S.D
Professor of International Law Yokohama City University
Chairman, Planning Council of the International Ocean Institute (IOI)
Whilst the twentieth century may have been “the century of land,” the twenty-first
century is expected to become “the century of ocean.” This paper will first analyze
recent dramatic changes in the structure of international society from the perspective of
the social sciences, then clarify the idea of a new international law of the sea and therevolutionary structure of the United Nations Convention on the Law of the Sea. The
paper will then discuss the necessity of multinational security cooperation as aprerequisite for the existence of a “global human society.”

1. Disorder in the Basic Structure of International Society(1) The Failure of Agreements Among Nation States and Global Issues
Searching for the essence of “the power of the state” has been a key research theme inthe social sciences, including law, economics, and political science. Such research ispredicated on the existence of the state. It may look at how states interact with eachother, how state power is managed under democratic control, or what specific methods
are used to solve international disputes based on agreements among nation-states.
Because the international social order is based on the key premise that agreements are
made among nation-states, everything starts from the nation-state. As a result, social
sciences that are not predicated upon the nation-state or on state power are not accepted
as social sciences in the first place. In international law, the term “international society”
refers to “intergovernmental society” and the idea of civilians or human beings does notfactor in directly. Inevitably, governments are forced to recognize civil issues—that is,global issues—and try in some way to solve them by shunting them into the category ofinternational law, but actual issues that occur in civil society have already long been
dissociated from issues that occur at the level of nation-states. International society has
heretofore systematically handled intergovernmental issues through international law,which is “intergovernmental law,” but it is becoming clear that to solve issues ofmankind that extend beyond the framework of nation-states, or so-called global issues
such as the global environment, the North-South gap, and human rights, agreements

among nation-states are of little real use. This is causing the collapse of conventionalsocial scientific methodologies.
(2) Modern Nation-states coming apart at the seams
According to the traditional meaning, international society and international law are“intergovernmental society” and “intergovernmental law.” The first modern
nation-states (called “modern territorialistic states” in international law) appeared only
200 to 300 years ago. This feudal era, based on land being the source of all value, wassuperseded by the capitalistic economy, where money (capital) became the basis ofpeople’s lives. When the capitalistic economy arose, primarily in western Europe, theland-owning classes had a big problem trying to figure out how to maintain theirlong-held rights based on an outdated notion of land-based value in the new economic
system of capitalism.
In such circumstances, the feudal lords reshaped the governance of their landholdings into “States” with the land as “territory.” With this notion of territory, they
could control entry into and departure from the State. By also controlling the capitalistic
markets to a certain degree, they could siphon economic interests into the areas under
their control. This is the system of the present-day nation-state. Recently, however,capitalistic markets have shifted from handling actual products to derivatives, which areinvisible products, and transactions have become largely computerized. Now that thischange has come about, it has become impossible to manage transactions based solely
on the notion of “territory” in capitalism. But no other means exists for a nation-state to
manage capitalism. Because the nation-state is founded upon territory and land, which
has become inappropriate for managing present-day capitalism, all hope has been lost,and state finances have rapidly fallen into the red. Every country is deeply in the red,with no hope of climbing out of debt. The main basic right of the modern nation-state is
the right of taxation—which is essentially taking a percentage from the control ofbusiness transactions of all kinds—and this right has stopped working sufficiently. The
age when it was enough to see things within the framework of agreements among
nation-states is long gone. The law of the sea is in the same situation.
2. Changes in the Concept of the Law of the Sea(1) Pardoism
As modern nation-states started to come apart at the seams, which is an indication thatinternational society is fundamentally growing dysfunctional, one great man kept his
perspective and thought about how humanity could survive. That man was Arvid Pardo,

who in an historic speech to the United Nations on 1 November 1967, expressed his
ideas on how to deal with this crisis in humanity. One part of this speech which I am
fond of and like to quote often is:
The dark sea is the womb of life. Life was protected by the sea and emerged from it.
Even today, within our own bodies, in our blood and the saltiness of our tears, wehold the mark of our distant past. [BACK-TRANSLATION, PLEASE compare withORIGINAL]
People, today’s rulers of the land, are retracing their steps and attempting to develop the
deep sea bed. About this, Pardo had this to say:People’s invasion of the deep sea may be the beginning of the end of humanity andlife itself as we know it on the face of the Earth. [BACK-TRANSLATION, PLEASE
compare with ORIGINAL]
With this awareness of the extremely critical condition facing modern society,
Pardo called for the convening of the Third United Nations Conference on the Law of
the Sea (UNCLOS III). Humanity as a whole, in other words, must overcome the threatof its own extinction. A system which only allows for some of the approximately 10
billion people on earth to survive, will ultimately lead to man’s extinction. We must
somehow find a way for all 10 billion to survive on this tiny, love able planet in thetwenty-first century. If we do not, Pardo reasoned, civil society will ultimately collapse.
To achieve this, the sea will have to be granted a legal status of “mankind’scommon heritage.” Doing so would create the basic framework of a “civil society.” First,
it would serve to maintain peace in the seas; second, it would promote the rational
development of marine resources for humankind to survive; and third, it would raise theapproach to protection of the marine environment to a global level. Pardo is the one
who proposed a new order and international law of the sea. The key point to this view isseeing the sea as “the common heritage of mankind,” an approach that I have named“Pardoism.”(2) The Basic Structure of the UN Law of the Sea (LOS) Convention and its Three
Pillars
The “Pardoist” United Nations Convention on the Law of the Sea is a vast step beyond
the structure of previous treaties. Previous treaties were simply agreements on various

matters that had been discussed and agreed upon solely among treaty powers. These
agreements affirmed the rights of the individual countries, and were primarily
documentary evidence of the agreements made concerning how those affirmations
would be coordinated. In these treaties, rights were important while obligations weremerely an incidental problem that came with the rights. In other words, the traditional
system of international law is a system of dispute resolution based on the rights ofnation-states, and international law, which includes the law of the sea, was founded as a“system of rights.” The UN Convention instead acknowledges Pardoism and prescribes
the oceans as “the common heritage of mankind.” It retreats a step from Pardo’s
proposal, however, in designating only “the sea-bed and ocean floor and its resources”
as this “common heritage.” The Third United Nations Conference on the Law of the Sea,
which deliberated upon the issue of the protection of the marine environment, continued,
however, to discuss the marine environment in terms of it belonging to mankind as awhole. It succeeded in establishing an awareness of the seas and oceans as “one thing,”
inserting the following wording into the Convention’s preamble: “Conscious that the
problems of ocean space are closely interrelated and need to be considered as awhole...” In this light, one can see clearly that the UN Convention has brought about alogical shift in structure, asserting that the seas belong to all of humanity, which means
the rights to the seas do as well, while the duties of their governance lie with the States.
The UN Convention on the Law of the Sea is not predicated on a system of rights but ona system of duties.
The first pillar of the Convention is how to ensure peace on the seas. It is clearthat maintaining peace in ocean space, which comprises 71 percent of the surface of theearth, is essential to maintaining peace in the world. This is an important keystone of theConvention. Article 88, for example, reserves the high seas for peaceful purposes. From
this point on, any military exercises or actions on the high seas must accord with Article
88 or risk becoming a major issue. The problem boils down to how a State will justify
exercising its right to self-defense, covered by Article 51 of the United Nations Charter,
within the framework of Article 301 of the Convention, the principle of peaceful uses ofthe seas. The Convention states that because the seas belong to all of humanity, they canbe used only for peaceful purposes, clearly stipulated for the high seas in Article 88,“Reservation of the high seas for peaceful purposes.” In this way, the Convention has
established systems that also help to build peace.
The second key part of the Convention is the attention it gives to economic
concerns. In truth, this was the real agenda of UNCLOS III. By designating marine
resources as “the common heritage of mankind” and promoting its management anddevelopment internationally in the name of mankind, the Conference aimed for a radical
solution to the deadlocked North-South issue. To solve the problem of the North-Southgap once and for all, the Convention aimed to set up a new international regime toreplace the system of bilateral assistance that pairs advanced nations with developing
nations. Today, as everyone knows, there is no effective international system in place forsolving the North-South problem. Basically what we have is no more than a system offinancial assistance directly between two countries. Conventionally, internationalsociety has only approached the North-South problem within the framework of adonor-recipient pairing between an advanced country and a developing country. Pardo
believed that such a system could never solve the problem, no matter how long it was
implemented. Instead, he proposed the idea of managing the 71 percent of the Earth’s
surface—the seas—comprehensively, particularly promoting development of the ocean
floor rationally by an international ocean institute that represents mankind to create aninternational regime that is far superior to the bilateral assistance system to solve theNorth-South problem.
The third pillar concerns environmental issues. Because the seas belong to allof humanity, it is naturally the people’s responsibility to manage the seas. It is
understood that carrying out environmental measures on a case-by-case basis as has
been the case up to now will not work. What is needed is comprehensive managementof all the seas as a single ecosystem. In the stages leading up to the Convention, allmarine pollution problems were handled separately, such as pollution caused by marine
development, vessels, or dumping. Once the Convention was enacted, a comprehensive
approach was adopted for the first time—a revolutionary methodology that allowedvarious problems of marine pollution to be considered on the same level. The basic
awareness motivating this way of thinking was expressed in the preamble of theConvention, as noted above, in the phrasing: “Conscious that the problems of ocean
space are closely interrelated and need to be considered as a whole...”(3) Ocean Governance and Comprehensive Management of the Seas
If the UN Convention on the Law of the Sea is perceived in this way, we see that at thecore of its basic structure is the solemn guiding principle that the seas are the common
heritage of mankind. The comprehensive management of the seas that goes with the
responsibility inherent in the principle of common heritage is known as “ocean
governance.” This term is a masterpiece created by the International Ocean Institute.
The UN Convention observes this principle and stipulates in detail the duties a State is
obliged to fulfill. Article 218, for example, prescribes “Enforcement by port States.” Uptill now, under the system of enforcement by flag States, a foreign vessel entering theport of another country could never be investigated. But now, whether a vessel is in the
territorial sea of a coastal State, on the high seas, within the exclusive economic zone ofa third country, or even in the territorial sea of a third State, if that vessel has caused
marine pollution in violation of the international treaty, it is a breach of faith toward
civil society, and the vessel can be investigated by the port State on behalf of mankind.
The Convention establishes this entirely new system. Such a system cannot possibly be
explained within the framework of the simple intergovernmental agreements of the past.
With this approach, the principle of a common heritage of mankind is not merely an
issue of common heritage but necessarily includes “common governing authority.” Not
only do the seas belong to all of humankind, but the important issue becomes how
humankind will manage the seas—hence, a common governing authority. Elisabeth
Mann Borgese states that the Convention for the first time establishes “the principle ofcooperation” in international law. The legal principle, she puts forth, requires countries
to cooperate based on the notion of humankind.
When this is the case, friction will arise with many of the traditional
international structures. In international adjudication, for example, no international
tribunal has ever had compulsory jurisdiction over a sovereign nation. Yet, according to
the UN Convention on the Law of the Sea, the International Tribunal for the Law of theSea, established in Hamburg, Germany, holds compulsory jurisdiction for the first timein history over all parties to the Convention, making it possible to freely appeal to the
Tribunal even when States engaged in a dispute over jurisdiction are not in agreement.
In addition, international tribunals in the past recognized only sovereign
nations as litigants. This was because international society was a society comprised ofnation-states, and only sovereign nations were recognized as parties with full rights andduties under international law. It was inconceivable that anything but a State could be aparty in an international tribunal. With the International Tribunal for the Law of the Sea,
however, a special chamber was set up to allow an agent other than a sovereign nation
to bring a suit. That chamber, the “Sea-Bed Disputes Chamber,” accepts actions evenfrom private citizens or companies engaged in sea-bed development. This is aremarkable shift from the limited framework of States as the sole possessors of legal
capacity in an international tribunal to a new framework that extends even to private
citizens.
Next, I address the issue of protection of the ocean environment. Up to thispoint, marine pollution has been treated basically as contamination, however the UN
Convention on the Law of the Sea now defines it in Part 1, Article 1, Paragraph 4 as the“introduction by man ... of substances or energy into the marine environment ... which
results or is likely to result in ... deleterious effects [to the marine ecosystem].” When
the French government carried out its nuclear tests in the South Pacific, it did not ratify
the Convention until after the tests had been completed. Television reports at the time
showed that the French government admitted to carrying out the tests but claimed thatno radioactivity was released. Even if that was the case, bubbling on the surface of thesea due to the vibration from the explosions over a significantly wide area had been
observed. This is a clear example of “introducing energy into the marine environment,”
covered explicitly in Article 1 of the Convention, and would therefore constitute marine
pollution. France was aware of this, which is why the ratification of the treaty had been
postponed until after the testing had been completed.
This type of situation is also covered under the Convention in the partconcerning exclusive economic zones. An exclusive economic zone is not the territorial
sea of a State. The State does not hold sovereignty over an exclusive economic zone but
merely has “sovereign rights.” Sovereign rights are considered exclusive jurisdiction,and signify the exclusive right of a coastal State to exploit the resources and economic
interests within the zone. The rights to the zone are therefore not based on the territorialconcept of ownership by the State. Because an exclusive economic zone is a zone towhich the right of economic exploitation is granted exclusively to a coastal State, thecoastal State has that much more obligation to manage the ecosystem of the exclusive
economic zone.

3. The Need for Multinational Security Cooperation in Ocean Space(1) Activities to Maintain Peace in the Seas: OPK
On the obligations of coastal States, I believe Japan should promote maritime
peacekeeping operations. The topic of the “peaceful use of naval forces” arises from this
discussion. Japan’s Maritime Self-Defense Forces (MSDF) must be used not only tofulfill the obligation of showing that Japan is exercising its right of self-defense as
stipulated in Article 51 of the UN Charter, but as maritime experts that can contribute insome way to civil society. They must be pressed into action to energetically fulfill newduties brought into existence by the framework of the UN Convention on the Law of the
Sea. The United Kingdom, for example, has taken a forward-looking view and aims tospend half of the annual budget for its naval forces on national defense, whilst devoting
the other half to efforts in ocean governance on behalf of humankind. The US, although
it is not yet a party to the UN Convention, has expressed great interest in this issue, andis starting to study it seriously. With Japan, Article 9 of the Japanese constitution

severely limits the role of the SDF, making such action very difficult. For the very
reason that Japan is prohibited to possess military potential or force, I believe mycountry needs to contribute on a growing scale to civil society. I have taken this idea toJapan’s Defense Agency and tried to persuade the agency to use the MSDF for peacefulpurposes on the seas as a way of appealing to the global community. I argued that theJapanese people and the international community would interpret this effort correctly asa natural part of the responsibilities of the SDF.
(2) The OPK Tokyo Appeal
One result of my persuasive efforts has been a joint research project under the auspicesof the National Institute for Defense Studies, having gained prior approval from the then
Defense Agency Vice Minister Akiyama. The plan took the form of the OPK Tokyo
Appeal, which was announced in 1997. OPK stands for Ocean Peace Keeping, anacronym created by the research group.
I would like to clarify here that most of the content of the OPK Tokyo Appeal
was incorporated into the 1998 final report of the Independent World Commission on
Oceans (IWCO): The Ocean... Our Future. This report proposes a global action plan forthe seas, and was created to serve as a basis for discussion to establish such a plan. Part
one of the report, “Promoting Peace and Security in the Oceans” is largely comprised of
the ideas that came up in the joint research project at the National Institute for Defense
Studies, and deals with the peaceful use of naval forces. Unfortunately, the acronym
OPK, a wonderful acronym which succinctly relays the new concept, was not adopted
due to opposition from certain members in the IWCO. Most of the underlying ideas
were incorporated, however, which is something to be celebrated—an unprecedentedcase of Japan’s original ideas and critical awareness being incorporated into a global
document addressing such important issues.
In the world today, various endeavors to promote ocean governance are taking
place. One such effort is the Integrated Coastal Zone Management (ICZM), which is anattempt to manage coastal zones that lie between sea and land in an integrated
fashion—also known as Integrated Coastal Area Management (ICAM). How tocomprehensively manage these zones, which bring together sea and land, including theissue of security, is a topic now being discussed around the world. Many different
countries are energetically carrying out research domestically, and Canada has already
moved ahead to the stage of implementation. Also, at the global “Rio+10” summit,
which is to take place in Johannesburg, South Africa in September 2002, ICAM will
most probably be an important topic on the agenda. Unfortunately, there are noindications that Japan, as an island nation, is taking any action on this issue at this time.
(3) International Measures toward Ocean GovernanceAt this point, I take a brief look into the international measures on ocean
governance. The Intergovernmental Oceanographic Commission (IOC) of UNESCO hasdetermined that 90 percent of marine pollution is land-based, which means that theway in which measures are implemented on land is vital to the prevention of marine
pollution. The problem is that discussions of land are tied to the sovereignty of coastal
States, and as yet, it is not possible to deal with these issues at an international level.
Nevertheless, the rapid mounting awareness of the urgent need to act in order to halt thecomplete destruction of earth at the international level, has meant that the United
Nations has finally taken the first steps toward solution. In September 1999, theInternational Workshop on Coastal Megacities was held in Hangzhou, China, organized
by UNESCO-IOC. It was the first-ever workshop to focus on coastal area management
in coastal megacities, and took advantage of this shift in UN policy.
Also, to take direct measures to solve issues related to marine pollution fromland-based sources and activities, the United Nations Environment Program (UNEP)
has begun a major international project with its Global Program of Action for theProtection of the Marine Environment from Land-based Activities (GPA-LBA). This
project seeks to develop a global strategy for protecting marine and aquatic ecosystems
from the vastly harmful effects of land-based human activity, and seeks to impose
regulations at an international level. UNEP rests at the center of this strategy, and thereis even talk of changing the UNEP charter in order to be able to put every effort towardtaking steps to resolve these problems over the next 10 years. A coordination office for
UNEP/GPA-LBA was established in 1999.
One activity that deserves close observation is the United Nations Informal
Consultative Process on Oceans and the Law of the Sea (UNICPOLOS), whose firstmeeting was held in May 2000. Since the adoption of the UN Convention on the Lawof the Sea by UNCLOS III in 1982, those permanent UN bodies whose legal framework
had been clarified by the Convention and had been established to implement ocean
governance, had their roles limited to extremely specific objectives. These bodies are:the International Seabed Authority for handling seabed development; the International
Tribunal for the Law of the Sea for settling disputes; and the Commission on the Limitsof the Continental Shelf for establishing the outer limits of a coastal State’s continental
shelf. Yet there is no body to study and implement ocean governance as a whole. The
Independent World Commission on Oceans (IWCO), in its report, mentioned earlier,called for the convening of a UN Conference on Ocean Affairs, and the establishment of
a World Ocean Affairs Observatory. It also proposed a periodically convening World
Ocean Forum as a public trust to carry out all civil ocean assessments. None of thesehave materialize as yet.
At the 1998 Seventh UN Commission on Sustainable Development (CSD-7),
however, a notable change could be observed on these issues. Though the meeting did
not lead to the establishment of a permanent body, it was decided then to establish an
informal standing committee under the auspices of the UN General Assembly thatwould serve almost like a “springboard” to facilitate more substantial review by the
Assembly of developments in ocean affairs. This was the start of UNICPOLOS, whose
second meeting was held in May 2001. Although the Consultative Process is informal, it
is extremely valuable in that the resolutions the Assembly adopts are based on thereports it produces.
(4) The Need for Multinational Security Cooperation in Ocean SpaceIn actual fact, my ultimate research theme has been “whether humanity as a whole cansurvive in the twenty-first century, or not.” I have been researching the law of the sea
for nearly 35 years, and I have come to believe that it is not possible to answer this in
the affirmative unless a civil society is built that transcends the traditional notions ofinternational society, based on the new thinking on the law of the sea that forms thebasis of the UN Convention on the Law of the Sea. In short, humanity has no future
apart from living with the sea. Without a doubt, Japan, as an island nation in particular,
could not exist geopolitically without the oceans. Also, from a pacifist perspective, aparamount factor in Japan’s modern history and the fundamental principle of ourconstitution, we have no other rational choice but to try to establish a civil society bysecuring peace on the seas. In the Lisbon Declaration, adopted together with the IWCO
report on 31 August 1998, the new legal concept of “limited sovereignty” was presented,
clarifying that limited rights are inherent in the concept of national sovereignty itself.
This clarifies the substance of “State obligations” in considering issues of the sea whenadhering to the notion of civil society, and is a conclusion developed from necessity outof the principle of “mankind’s common heritage.” The self-imposed pacifism built into
the Japanese constitution is also an inherent limit to the exercise of national sovereignty.
Japanese people need to be aware that Japan bears the responsibility for civil society totake the global lead in bringing about ocean governance, as no other country can,utilizing this progressive twenty-first-century concept.

Conclusion
To summarize:
1) Promoting security in the oceans under the principle of a “common heritage ofmankind” as stipulated in the UN Convention on the Law of the Sea—that is,peaceful use of the sea—does not merely mean to deter intergovernmental
disputes in ocean space, which is nothing but a negative form of security. Peaceis not just the absence of disputes, but represents the creation and maintenance of anequitable system based on civil society. The opposite of “peace” in this context
would therefore be “inequity.”
2) A program for the peaceful use of sea, must first and foremost promote sustainable
development in regional and global society, and be based on the principle ofcooperation within the framework of integrated coastal area management.
3) The role of national defense forces, including naval forces, is the key to thisprogram, and should be studied seriously as a method for a State to fulfill its
obligation to civil society. Here, it is vital to watch the latest movements in the
Mediterranean region of the Mediterranean Commission on Sustainable
Development (MCSD), created upon amendment of the Barcelona Convention and
the Mediterranean Action Plan in 1995–1996. This Commission is composed not
only of representatives of State bodies in charge of the environment anddevelopment, but also representatives of local authorities, chambers of commerce
and industry, labor unions, and non-governmental organizations representing local
communities, not to mention concerned naval authorities.
4) As for the peaceful use of naval forces, it may be possible to pool the collective
efforts of the various countries’ naval forces at the regional and international
level to conduct law enforcement (OPK) such as joint monitoring and security
operations for the peaceful use of the seas. Through such joint activities, it will bepossible to deal with smuggling, illegal immigration, environmental subversion,piracy, and international terrorist activities—threats to civil society.
5) The Johannesburg World Summit to be held in South Africa in September 2002, a
UN conference on environment and development, should provide a good
opportunity to initiate regional international conferences that include theparticipation of related governments and naval authorities as well as otherusers of the oceans in order to begin specific discussions on creating a programof multinational security cooperation in ocean space within the framework ofintegrated coastal area management.