Policy Speech by Mr. IMADA KatsuhikoDirector, Law of the Sea Division, International Legal Affairs Bureau,
Ministry of Foreign Affairs of JapanAt the Conference on Oceans Law & Policy:
Peaceful Maritime Engagement in East Asia and the Pacific Region
10-12 May 2021

At the outset, I would like to take this opportunity to extend my sincere appreciation
for convening this important and meaningful webinar.
1. Situation in East Asia
It is no exaggeration to say that East Asia, which is one of the main themes in thiswebinar and where Japan is located, is among the “heavy users” of the United Nations
Convention on the Law of the Sea (UNCLOS) in the whole world. Many issues related
to the ocean in this area such as fisheries, maritime security, marine environment andmarine traffic enliven media every day, and such situation has drastically increased theworkload of the authorities, compared to when the UNCLOS went into effect in 1994. Incase of Japan, which ratified this Convention in 1996, the body of experts on UNCLOS“Law of the Sea Division” in the International Legal Affairs Bureau in the Ministry ofForeign Affairs handles legal aspects of issues related to the ocean.
One of the fundamental reasons why the Ministry has established the specialized
division on UNCLOS is that East Asia includes many non-delimited maritime boundaries
between States and exercising of jurisdiction in such area requires a more carefulmanagement in conforming to the Convention. Globalization activated interconnection
between States on the ocean, and the increased traffic of the ships and people needpractical legal coordination of the jurisdiction between States. And non-delimited
maritime boundaries make this coordination more complicated and sometimes moredifficult.
As a matter of fact, Japan has not yet completed maritime delimitations withneighboring States without the exception of the agreement concluded on a part ofcontinental shelf, while establishing provisional fisheries agreements with these States toaddress practical problems relating to fishing activities in the EEZ in the transitionalperiod.
2. Transitions after UNCLOS went into effectIt has been 27 years since the UNCLOS went into effect, and it is long enough to cause
certain changes to the situation around the UNCLOS. Let us take a look one by one.
Article 88 of the UNCLOS stipulates that the high seas shall be reserved for peacefulpurposes, which the previous Convention on the High Seas did not contain. In a traditional
sense, areas beyond national jurisdiction such as the high seas were free and open to all
States for navigation, fishing and other activities. However, there is an increasing needfor ocean management to utilize and conserve the ocean and its resources under thenecessary rules and frameworks for the common interest of the international community,
while maintaining the principle of the freedom of the high seas.
The ongoing negotiations to develop a new implementing agreement under UNCLOS,
known as the BBNJ Agreement, are a good example. The significance of conserving
biological diversity has been widely recognized and is addressed in areas within national
jurisdiction by the Convention on Biological Diversity. The new agreement aims toextend the conservation and sustainable use of marine biological diversity of areas beyond
national jurisdiction (BBNJ). In 2018, Intergovernmental Conference (IGC) started thenegotiations aiming to reach consensus on the challenging issues such as marine genetic
resources, including questions on the sharing of benefits, measures such as area-based
management tools including marine protected areas, environmental impact assessments
and capacity-building and the transfer of marine technology. Japan is committed tocontributing to the work of the IGC with the goal of creating a well-balanced international
legally binding instrument on the conservation and sustainable use of BBNJ for thebenefit of the international community.
Another example is deep-sea mining, which was once considered enormously
challenging. Mining the seafloor several thousand meters below the ocean’s surface has
been emerging as feasible today due to the development and evolution of science andtechnologies. In pursuit of the exploitation of the mineral resources in “the Area”, which
is designated as “the common heritage of mankind” in UNCLOS, the International
Seabed Authority has made significant achievements, such as adopting exploration

regulations for three mineral resources. The Authority has concluded as many as 31
exploration contracts since its establishment. As part of its effort, the Authority has beenworking on the development of the draft regulations for the exploitation of mineral
resources in the Area over the last several years. Japan has constructively engaged in thework of the Authority to formulate reasonable regulations on mineral exploitation,
properly striking a balance between exploitation and environmental considerations.
On top of these, there has been development of legal frameworks in respective fields.
For instance in the field of fisheries, it is fresh in our mind that Agreement to Prevent
Unregulated High Seas Fisheries in the Central Arctic Ocean was signed by 10 parties
including Japan in 2018 for the conservation and sustainable use of fisheries resources on
the high seas in the Arctic.
New legal regimes introduced by the UNCLOS such as the EEZ and the continental
shelf increased the necessity to delimit maritime boundary between States. On the other
hand, when it comes to how to delimit, UNCLOS remains to prescribe ambiguously thatthe delimitation shall be effected by agreement on the basis of international law in orderto achieve “an equitable solution”.
In the early case laws in 1960’, the continental shelf was regarded as an area which is
physically extending the territory of the coastal States, and this concept of “naturalprolongation” of its land territory was applied to the delimitation of the continental shelf
between States with opposite or adjacent coasts, for example.
However, after the UNCLOS went into effect, the necessity of delimitation has
increased not only of the continental shelf but also of the EEZ between States with
opposite or adjacent coasts. In the recent case laws, the international tribunals pursue
consistency in establishing maritime boundaries both for the continental shelf and theEEZ by means of the “three-stage approach”, which consists of constructing provisional
median line, adjusting such provisional line by considering relevant circumstances, andconducting disproportionality test to ensure that the result does not cause unnecessary
inequality. This transition from natural prolongation theory to three-stage approach is oneof the remarkable changes which international community witnessed.
Furthermore, it is remarkable that the environmental situation around the world has
drastically changed in the last 27 years, which possibly produce new legal issues on thelaw of the sea, such as recession of the baseline and submergence of the remote islandson the border area, caused by the sea-level rise.

3. Challenges accompanying the flag State principle
In addition to the transitions mentioned above, judicial practices during these 27 years
revealed some challenges which accompanies the structure of the UNCLOS. Today, I
would like to focus on one of them: the flag State principle.
UNCLOS prescribes that ships shall be subject to the exclusive jurisdiction of the flag
State on the high seas. On the other hand, it stipulates that it is each State which shall fix
the conditions for the grant of its nationality to ships. The differences between the Statesas to the condition of the tax or the operating cost of the ships create economic incentive
for the ship operator and the flag States for the flag of convenience.
The assumption on which the flag State principle functions in order to maintain themaritime order on the high seas is that the flag States effectively administrate ships with
their flag. However, the flag-of-convenience States sometimes lack the ability and will toadministrate ships with their flag, and this is one the backgrounds behind the legal issues
such as illegal fishing, marine pollution and violation of ship safety standards. It is newto our memory that the Panama-flagged bulk carrier ran aground on a coral reef in July
2020.
Furthermore, due to the flag State principle, coastal States cannot enforce jurisdiction
on the ships on the high seas which engages in the illegal activities such as trafficking ofdrugs, without the consent of the flag State.
There seems to be no veritable panacea for those issues which accompany the flag State
principle, and it is practically not easy to settle with them.
4. Conclusion
As I mentioned above, the situation around the international community and UNCLOS
experienced changes and transitions in the last 27 years, and it also revealed that there aresome challenges associated with the structure of UNCLOS. Nevertheless, it is clear that
“Constitution for the oceans” plays an indispensable and essential role as the legal basis
for the international maritime order. Japan continuously seeks to cooperate with thefellow States of the international community to address global issues on the ocean in orderto maintain and enhance the rule of law on the seas and oceans.