Restructuring the Maritime Order

Restructuring the Maritime Order*
Shigeki Sakamoto**

Abstract
International maritime order which in recent years has been underpinned by the UN
Convention on the Law of the Sea (UNCLOS) has been the foundation of the global peace
and prosperity for the last centuries. Due to the rise of emerging maritime powers, suchas China, and the expansion of maritime issues, however, the maritime order is currently
under various challenges. This paper explores the new challenges existing on the tension
between China and the Philippines, due to Chinaʼs extraordinary demands in the South
China Sea and dispute settlement mechanisms and the roles and jurisdiction of UNCLOS inbiodiversity and sustainable use of resources. While the paper points out some limitationsof the existing order, it also argues the importance of sustaining the existing maritime order
based on UNCLOS with bringing out necessary reforms.

1. New challenges confronting the law of the sea

For centuries, the maritime order governing the worldʼs oceans, which cover 70% of theearthʼs surface, consisted of a dual structure, divided between the narrow bands ofterritorial waters deemed necessary for the security of coastal states and the vast highseas beyond, which all countries were free to navigate and use as they saw fit. The lawof the sea, which codifies this order, is one of the oldest fields of international law.
Freedom of navigation on the high seas for maritime trades was understood to be in thegeneral interest of international community. Accordingly, the pirates who threatened this common
good were regarded as “enemies of mankind” (hostis humani generis). As early as the seventeenth
century, piracy was defined as an offense of “universal jurisdiction,” punishable at the discretionof each state. More recently, however, international human rights law, which has developed
significantly after World War II, has taken a stand on the enforcement of anti-piracy laws, callingfor suspects to be brought before a judge within 48 hours of the initial detention where possible.
In this way, one of the classic problems addressed by the law of the sea has emerged as a newhuman rights challenge.
Migration issues have led to similar tensions. The law of the sea imposes on ships of allnations a duty to rescue, if possible, any persons in distress whom they encounter at sea. Thisnaturally includes the obligation to transport the distressed persons to a safe place. However,in recent times, a growing number of states have been evading their responsibility to protect
distressed persons if they were found to be undocumented migrants or refugees on overcrowdedboats. They do this by barring the entry of rescue ships into their territorial waters. The reason isthat, once migrants enter a countryʼs territorial water, they fall within the scope of the Convention* This essay was originally published on Kokusai Mondai [International Affairs], No. 674, Sep. 2018** Shigeki Sakamoto is a professor in the Faculty of Law Department Law at Doshisha University.

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Relating to the Status of Refugees, which requires contracting states to provide migrants withrefugee hearings and prohibits them from returning refugees to a country in which they could
face persecution (the principle of non-refoulement). With the law of the sea calling for rescueand protection of persons in distress, and international human rights law demanding that thedistressed personsʼ rights be upheld, these states are responding by attempting to limit the spatial
scope of their duty to protect human life (to their own territories, including territorial waters),
bringing them into conflict with protection of the human rights of the individual. Underlying
many of these new, twenty-first-century challenges, from the Somali piracy crisis to the flood of
refugees from regions destabilized for a long time by the so-called Islamic State, is the failureof national governments̶entrusted with safeguarding the lives, persons, and property of thepeople̶to exercise effective control over their own territories.

2. UNCLOS and its elaboration via case law
Similar tensions surround the exploitation of marine resources in the East and South China Seas.
The Chinese government, having embraced the goal of becoming a “great maritime power,” isdetermined not only to become a major naval power but also to secure their maritime interests.
Having become the worldʼs second largest economy, China needs marine resources to support
its economic development. One focus of this drive is the East China Sea, where China andJapan have yet to agree on the delimitation between their exclusive economic zones (EEZs) andcontinental shelves. Despite the absence of an agreement, China has unilaterally pushed ahead
with development of gas fields in a section of the East China Sea that lies on the Chinese side of
the median line proposed under Japanʼs Act on Exclusive Economic Zone and Continental Shelf.
As of this writing, Japan has confirmed the presence of 16 drilling structures in that area.
The UN Convention on the Law of the Sea (UNCLOS) states that the delimitation of theEEZ and the continental shelf between states with opposite or adjacent coasts “shall be effectedby agreement on the basis of international law . . . in order to achieve an equitable solution”(Article 74, paragraph 1 and Article 83, paragraph 1). It also requires that parties to a dispute
exercise restraint, stipulating that “pending agreement as provided for in paragraph 1, thestates concerned, in a spirit of understanding and cooperation, shall make every effort to enter
into provisional arrangements of a practical nature and, during this transitional period, not tojeopardize or hamper the reaching of the final agreement” (Article 74, paragraph 3 and Article 83,paragraph 3). In August 2006, before embarking on its unilateral gas exploration and development
program in the East China Sea, China lodged a declaration with the Secretary General of theUnited Nations, stating that it would not accept the compulsory arbitration process provided forin Part XV of the Convention, Settlement of Disputes, to disputes relating to interpretation orapplication of the provisions in Article 74 and Article 83. In the Guyana-Suriname case awardedon September 17, 2007, under that same arbitration process, the court ruled that unilateral
exploitation of oil and gas reser ves in an undelimited maritime area constituted an action to“jeopardize or hamper the reaching of the final agreement” as well as a breach of the obligation toexercise restraint. In the light of this award, it seems clear that Chinaʼs current activity in the East
China Sea is in violation of UNCLOS.
In January 2013, the Philippines, making use of the aforesaid compulsory arbitration, broughta case against China, known as the South China Sea arbitration. Recognizing that China had opted
out of arbitration on delimitation disputes, the Philippines did not seek a decision establishing themaritime boundary but instead brought an “entitlement dispute.” Specifically, it challenged thelegality of Chinaʼs “nine-dash line” on the grounds that the reefs and low-tide elevations, including
the Spratly Islands, over which China exercised de facto administrative control could not bydefinition have their own territorial waters, EEZs or continental shelves. This approach overcame
jurisdictional obstacles, and on July 12, 2016, the arbitral tribunal ruled that China has no25
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Restructuring the Maritime Orderhistorical right based on the nine-dash line and was in violation of UNCLOS. In the same case, thearbitral tribunal took on the interpretation of Article 121, which deals with the legal definition ofan island. Whether or not one agrees with the arbitral tribunalʼs interpretation, it does clarify theprovision, which had previously been criticized as “intolerably imprecise” and “a perfect recipe forconfusion and conflict.” In this way, the judicial process is gradually developing and fleshing out
the normative content of UNCLOS.

3. Biodiversity and sustainable use of resources beyond national jurisdiction

As a “living treaty,” UNCLOS also develops and evolves its content through various implementingagreements elaborated in response to new issues and challenges.
The first UNCLOS “ implementing agreement ” was the 1994 Agreement Relating toImplementation of Par t XI of the Convention, which established the International SeabedAuthority. The second was the 1995 UN Fish Stocks Agreement, which elaborated on theUNCLOS principle of adopting a precautionary approach to the management of straddling andhighly migratory fish stocks, embraced an ecosystem approach to management of those stocks(whose habitats span the artificial boundaries of the 200-mile EEZ), and introduced consistentconservation and management measures straddling in the EEZ and on the high seas. In addition,
an intergovernmental conference established to negotiate a new UNCLOS implementing
agreement was convened in the United Nations in September 2018.
Despite these developments in the twentieth century, the twenty-first century has witnessed
the emergence of challenges that the drafters of UNCLOS never anticipated. One is theexploitation of marine genetic resources (MGRs). Another is the establishment of marine
protected areas (MPAs).
At present, only a limited number of industrially advanced nations have access to marine
genetic resources and entities capable of utilizing them. This has raised concerns amongdeveloping countries that the principle of freedom of the high seas will be applied to theexploitation and utilization of MGRs. The developing countries note that the ocean floor and its
resources in areas beyond national jurisdiction are considered part of the common heritage ofhumankind, and they argue that the same should apply to marine organisms dwelling in thoseareas. Accordingly, they argue that, since MGRs from the deep seabed are the common heritageof humankind, any benefits from their use should be distributed fairly and equitably among
members of the international community.
Marine protected areas are not defined under the provisions of UNCLOS. Amid a growing
need for steps to protect the marine environment and its biodiversity, individual countries havebeen taking steps to establish MPAs within their own territorial waters and EEZs, with eachcountry establishing its own definition and regulatory regime in accordance with domestic law.
The 1992 Convention on Biological Diversity incorporates the concept of protected areas toachieve its objectives, which include not only the conservation of biological diversity but also
the “sustainable use of its components” (Article 1). The International Union for Conservationof Nature has established various categories of protected area, classified according to theirmanagement objectives, and it mentions “ecosystem services” in its definition of MPAs. Japanis promoting its own type of MPA that would maximize the potential role of ecosystem services,with the aim of both protecting and utilizing biological diversity.
On June 19, 2015, the UN General Assembly adopted a resolution (69/292) on “development of
an international legally binding instrument under UNCLOS on the conservation and sustainable
use of marine biological diversity of areas beyond national jurisdiction.” It calls for international
negotiations to address, together and as a whole, marine genetic resources, including the sharingof benefits; area-based management tools, including marine protected areas; environmental
impact assessments; and capacity building and transfer of marine technology. Thus the UN26
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campaign began to put together an international agreement on marine biological diversity beyond
areas of national jurisdiction, or BBNJ. The effort began with the formation of a preparatorycommittee, which met four times between March 2016 and July 2017.
In the “non-paper on elements of a draft text” issued at the final meeting of the preparatorycommittee, the committee chair offered an extensive compilation of ideas, proposals, and options
for a new agreement, including a host of matters on which the delegations had failed to reach any
consensus. For example, with respect to the scope of the instrument, there was disagreement as
to whether it should encompass just the seabed beyond national jurisdiction or both the seabedand high seas and whether it should apply only to in-situ MGRs (in their original habitat) or also
to ex-situ resources (such as genetic material stored in gene banks and laboratories) and evenin-silico resources (such as information in databases and resources created through computer
simulations). Even more basically, opinion remains sharply divided as to whether the governing
principle should be freedom of the high seas or the common heritage of humankind.
The first session of the Intergovernmental Conference (IGC) on BBNJ was held on September
4–17, 2018. At that time it was decided that three more sessions would be held by the first half of2020. Prior to the first session, an organizational meeting was held in New York on April 16–18,
2018. Among the top agenda items at this initial meeting was the election of a president. The post
went to Rena Lee of Singapore, Ambassador for Oceans and Law of the Sea Issues and Special
Envoy of the Minister for Foreign Affairs, who had served as facilitator for capacity building andtechnology transfer on the preparatory committee. The delegates also exchanged views on thebest way to structure the IGCʼs deliberations, scheduled to begin the following September. It wasagreed that the president would draft an “aid to discussions” paper in preparation for the firstsession to serve as a starting point for deliberations, but that she would not prepare a “zero draft,”which might have the effect of rushing the negotiations. President Lee subsequently preparedand submitted the Presidentʼs Aid to Discussions (A/CONF.232/2018/3).
Will the international community embark on a major restructuring of the existing maritime
order, embracing the conservation and sustainable use of BBNJ as a new common goal of thatorder? Or will it rally around a solution that upholds the existing order, in accordance with theUN resolution on BBNJ (72/249) adopted on December 24, 2017, which “reaffirms that the workand results of the conference should be fully consistent with the provisions of the United Nations
Convention on the Law of the Sea”? Only time will tell.
As the foundation of the maritime order, UNCLOS has taken the approach of dividing theoceans into discrete zones to determine the rights and obligations of coastal and inland statesvis-à-vis those waters. It has also created separate regulator y regimes governing navigation,
fishing, resource development, marine conservation, and scientific research. On the high seas,
enforcement of regulations follows the flag state doctrine. Yet UNCLOS itself affirms the needfor unified regulation in its preamble, which states that “the problems of ocean space are closelyinterrelated and need to be considered as a whole.” It was the inability of regional fisher yauthorities to control illegal, unreported, and unregulated (IUU) fishing on the high seas that
led to the conclusion of the Agreement on Port State Measures, which expanded port states ʼjurisdiction over foreign vessels engaged in illegal fishing. Here we see a new attempt to unify
international marine regulation through a coordinated effort to keep illegally caught fish off themarket.
As the IGC proceeds, it will bear close watching to see how the pursuit of new common goals,
namely, the conservation and sustainable use of marine biodiversity, impacts the framework forseparate regulatory regimes and how the existing maritime order is restructured as a result.

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