CONFERENCE ON THE LAW OF THE SEA AND MARITIME SECURITY – JDZB,
26.02.2016
REPORT 1
Rapporteur: Victor Ventura (LL.M.), University of Hamburg 2

Quick outline of the Conference’s thematic structure and methodology
The Conference on the Law of the Sea and Maritime Security was hosted by theJapanese-German Center Berlin (JDZB) and the German-Japanese Association of Jurist (DJJV),
with the support of the Embassy of Japan to Germany. The event took place on 26 February
2016, and congregated a high-profile group of participants and stakeholders with long-standing
experience on topics related to maritime affairs, marine geopolitics and maritime legal disputesettlements. Throughout the Conference, topics of interest to Japan and Germany were intensely
debated. With a view to combining presentations by subject matter, the conference wasstructured into four thematic panels, each of which with three to four panelists, and followed byquestions and answers.
The first Panel, entitled “Ocean Governance”, was chaired by Dr. Monika-Yuki FranzDelmuth and offered participants an overview on current Japanese and German Ocean
Governance policies and priorities. The panel leveled the ground for further discussion on thegeopolitics of the South and East China Sea, as well as on the Japanese relations withneighboring countries, which was the focus of Panels II and III, on Coastal State Rights andEntitlements and on Maritime Security Issues respectively.
The fourth Panel promoted a thematic shift and emphasized legal aspects of ocean affairs,
mainly in light of the United Nations Convention on the Law of the Sea (UNCLOS). Panelists
provided insights on existing compulsory dispute settlement procedures under the UNCLOS, on
impasses regarding the extension of a State’s continental shelf, and on the on-going ChinaPhilippines arbitration proceedings.
Welcoming remarks
In her inaugural words to participants and stakeholders to the conference, Dr. Friederike
Bosse, Secretary General of the Japanese-German Center Berlin, highlighted the complex
political, economic, and military context in East Asia. The region is currently shaken by politicalturmoil that calls not only for closer cooperation between directly involved and third interested
States, but also for deeper debates on maritime security affairs concerning East Asia.
1This report portrays the main line of argument of the Conference and it summarizes the presentations anddiscussions according to the understanding of the author. We therefore ask not to quote single remarks as literalremarks of the speakers.
2
PhD researcher on International Law of the Sea at the University of Hamburg. E-mail: vfventura@gmail.com

In a deeply interconnected world, where problems are globally caused and consequences
are experimented worldwide, solutions are also to be found through dialogue, cooperation andpartnership. In this sense, current tensions in East-Asia allows one to conclude that Japan expects
more from Germany and Europe alike. Further engagement in Asia is seen as necessary,
engagement inspired by the international Rule of Law, and aimed at long-lasting regional orderand peace.
In entertaining potential solutions for ongoing tensions, it is inevitable to emphasize therelevance of ASEAN (Association of Southeast Asian Nations), given the history of good
relations between Japan and the Association, and the need for comprehensive dialogue between
interested parties.
In a scenario marked by tensions between Politics and the Rule of Law, there is a needfor representatives from different fields of expertise and countries to combine efforts inunderstanding the current situation and eventually designing avenues of action. Therefore,
expectations from the conference included fruitful debates and insights for better understanding
ongoing tensions.
Welcoming remarks were also offered by Dr. Jan Grotheer, President of the German
Japanese Association of Jurists (DJJV). In his pronouncement, Dr. Grotheer profited from theopportunity to acknowledge the work of the Association and its members in assisting theorganization of the conference and in spreading the word of German legal developments in Japanand vice versa.
PANEL I – OCEAN GOVERNANCE
Panel I focused on the basic principles and priorities underlying ocean government
policies by both Japan and Germany. Topics addressed were of a less controversial nature, as thepanel held a rather descriptive character. Noteworthy is the interesting combination within thepanel of political aspects of governance with legal options for dispute resolution under
UNCLOS. This relationship between Politics and International Law influenced the entire
Conference. The broad issues dealt with in this Panel paved the way for discussions on moresensitive topics relating to maritime security.
The first presentation was held by Ambassador Ishii Masafumi (Embassy of Japan to
the Kingdom of Belgium), and aimed at exposing the Japanese perspective on contemporary
ocean governance issues. Current Japanese priorities concerning ocean matters include: (a) tomaintain freedom and safety of navigation in accordance with International Law, mainly because
in the view of the Ambassador neither Japan nor China have appetite for crises or tensions, given
its propensity to disturb the flow of goods; (b) to maintain access to global commons and topromote a sustainable use of natural ocean resources, including fisheries and deep water natural
resources; (c) to foster the solution of conflicts in accordance with International Law, being thatthe reason why Japan opposes the use of force or coercion for advancing maritime claims, andinsists on the need for States to settle disputes by peaceful means according to the UNCLOS; (d)to establish crisis management mechanisms (as ultima ratio), in order to decrease the likelihoodof conflicts. To this priority, it is inevitable to create conditions for direct dialogue between
Navies, as it is advisable to coordinate teams and ease tensions on the ground.
Alongside State priorities, most daunting challenges to ocean governance, according to
the Japanese perception include the implementation of UNCLOS provisions and the clarificationof hermeneutic divergences, such as those rules relating to the Exclusive Economic Zone (EEZ).
On this challenge, to have the United States ratify UNCLOS would be of absolute relevance tothe global, uniform implementation of the Convention. However, whether that will happen in thenear future is still a question mark.
A second challenge relates to the need for additional rule-making efforts, in which theCodes of Conduct (COS) represent a possible way to reach the peaceful solution of international
maritime crises. To these efforts, the East Asia Summit (EAS) would be responsible to bring all
relevant powers of the region together, to specify who takes the lead in what context, and to
discuss topics including crisis management. A third challenge is for States to use traditional tools
where possible. For instance, to sign fishery agreements, especially in the South China Sea, orother sorts of law-enforcement agreements. Fishery agreements may have a limited effect, as
they do not solve political tensions, or do not cover maritime boundary issues, but are still
relevant in cooling tensions in problematical regions.
Moreover, challenges include the need to promote respect for international binding
decisions (for peaceful conflict settlement); the need for a new framework for crisis
management, as the Japan-China Sea-Air Contact Mechanism and Codes for Unplanned
Encounters at Sea; the need to invest massively in dynamic and adaptive capacity-building,though various institutions, such as the Japanese Official Development Assistance (ODA); theneed to be prepared for new challenges, such as the Arctic and Space exploration. Finally,
Ambassador Ishii addressed the challenge to deploy other diplomatic and military methods topromote an effective governance of the oceans. A possible means would be to deepen defense
cooperation between Japan and the North Atlantic Treaty Organization (NATO).
On the German perspectives to ocean governance, Ambassador Rainer Lassig (Head of
Division Special Areas of International Law, Foreign Office) highlighted possible political andlegal standpoints. Politically, Germany supports the European Union Maritime Strategy, a multisectoral initiative to be implemented by a broad-ranging Plan of Action structured in fivedifferent axes: international trade; enhancement of information exchange; capacity building; risk
management; and research and training. Still on the political sphere, a most relevant document is
the G7 Declaration of Foreign Ministers after the Lübeck Meeting in 2015, due to the concerns
expressed against unilateral actions in the South China Sea, including land reclamations, and to
obligation of G7 States to confront excessive maritime claims.

The juridical aspects of the German approach to ocean governance are multiple, for thatreason, the presentation focused on two specific points. Firstly, the Ems-Dollart Treaty between
Germany and the Netherlands (signed in 2014, but entering into force in 2016), which not only
settles a historic maritime dispute by leaving open the question of boundary delimitation, butalso regulates responsibilities and rights of use for the coastal sea between three and twelve
nautical miles from the coast of both countries. Besides, the Treaty also governs the constructionof a joint offshore wind energy farm, and provides for the combined monitoring of maritime
traffic on shared waters. Secondly, the negotiations on a potential Implementing Agreement on
the Protection of Biodiversity in Areas beyond National Jurisdiction (BBNJ).
On the legal arena, it was also noticed that a major viewpoint difference exists between
Germany and Japan regarding negotiations for an Implementing Agreement on the protection of
biodiversity beyond areas of national jurisdiction (also known as BBNJ). 3 Whereas Germany
pushes for the Agreement, Japan views it with skepticism, possibly due to fisheries’ interests.
However, despite individual issues, Ambassador Lassig stressed that Germany and Japan share ahistory of common understanding, and both countries work friendly and confidently together toadvance the cause of maritime security worldwide in accordance with the international Rule of
Law.
The following presentation, held by Prof. Dr. Henning Jessen (Hamburg University),
focused on the dispute settlement mechanisms established under UNCLOS. Initially, he offered aconcept of “dispute”, understood as the difference of points of view on law and/or facts that are
positively opposed by another party. The first dispute settlement mechanism analyzed was thepeaceful means of solution, in line with UNCLOS articles 286 and 287. Nonetheless, in case nopeaceful resolution is reached, resort to compulsory procedures is possible. One of theconflicting parties can bring the dispute to the International Court of Justice (ICJ), or to theInternational Tribunal on the Law of the Sea (ITLOS), or to an Arbitral Tribunal based on
Annexes VII and VIII, in cases relating to ordinary or “special” matters respectively.
According to Prof. Jessen, ITLOS possesses a more flexible Statute compared to the ICJ.
Under ITLOS, non-ratifying States can become parties to a dispute before the specialized
Tribunal. In fact, even private parties may come before the bench, as in the Arctic Sunrise
Prompt Release Request (2011), in which Greenpeace acted as amicus curiae. In this sense,
shipowner associations and non-governmental organizations may have a voice during judicial
proceedings.
UNCLOS sets a variety of procedures at the disposal of parties, with particular relevanceto the “Prompt Release” of vessels and crew. The political sensitivity involving prompt release
requests is well illustrated by the Arctic Sunrise case, between the Netherlands and Russia, in
3

Negotiations on a BBNJ Implementing Agreement have gained momentum, and the latest development was the
adoption in June 2015 of a resolution by the UN General Assembly determining the launch of negotiations in 2017
on that issue.

which a powerful State (Russia) refused the jurisdiction of the Tribunal and did not take part inproceedings. The practice of “no-show” has devastating consequences for the Rule of Law on
maritime issues. Noteworthy is also the ITLOS competence to award financial compensations, as
it was the case in the M/V Saiga proceedings (1997) and the obligation of Guinea to pay US$ 2
million to San Vincent due to the illegal detention of the vessel.
Moreover, cases before the Tribunal have also had environmental principles at their core,
as in the Mox Plant case, between Ireland and the United Kingdom in 2001, and in the Land
Reclamation case between Malaysia and Singapore in 2003. In both circumstances,environmental questions were at the core of the dispute.
Prof. Jessen concluded that ITLOS has a “slow” success story, in which the variety ofcases brought before the Tribunal is gradually increasing, what indicates that the internationalsociety is progressively more confident on the role of the Tribunal. From this perspective, there
is room for optimism. However, the denial of jurisdiction in “politically sensitive” cases by“powerful” UNCLOS ratifying States is a major threat to the entire system.
A short debate followed the first panel, and questions on the phenomenon of “toothlessdecisions” and the difficulty to enforce ITLOS’ verdicts arose. Panelists agreed that the solealternatives are international pressures, boycotts, and reputational costs, which should not be
underestimated. The lack of legitimacy in the international arena is not to be neglected as an
influential factor.
Another question dealt with the relationship between the courts, and whether there could
be contradiction and competition between ITLOS and ICJ. Panelists shared the view that there isneither contradiction nor competition, as ITLOS represents the more specialized instance, but
States maintain the sovereign discretion to refer to the ICJ or to the PCA in LOS related cases.
A question on the practice of “maritime lawfare” (word game in relation to “warfare”),
and whether Germany and Japan are willing to use this term and practice it, was forwarded by
one of the participants. Despite being an apparently negative term, it is considered a way toimplement UNCLOS by waging law claims, and, in this sense, is valid.
PANEL II – COASTAL STATES RIGHTS AND ENTITLEMENTS
In his presentation, Prof. Dr. Yanagihara Masaharu (Kyushu University) exposed theJapanese domestic legislation concerning the delineation of maritime zones (Territorial Sea, 200
nm Fisheries Zone and the Continental Shelf), followed by a brief overview on the Japanese landmass (380.000 km²) and its EEZ (4.050.000 km²), which is twelve times larger than the landarea. Because of its location eastward of China, the view was expressed that Japan constitutes asort of “natural barrier” to Chinese ambitions to reach the Pacific Ocean. Therefore, a mostpressing issue is to know precisely where one can fish (two powerful fishing nations, withmassive fleets) and exploit other natural resources.

As part of the Japanese strategy, the country has concluded bilateral agreements on
fisheries and other marine natural resources. Currently, there is a plurality of treaties bringing tolife a complex web of agreements and mutual bonds, which ultimately signals to the possible
peaceful resolution of conflicts in the region.
Initially, Japan signed a Continental Shelf Agreement with South Korea (1974) and thena Fisheries Agreement (1999), in order to draw a “Fisheries Provisional Line” with that neighbor.
Another relevant treaty is the Japan-China Fisheries Agreement, signed in 2000, which
establishes a “Median Water Zone” and fishing quotas agreed by both States.
Concerning non-living resources, especially gas, there is a Joint Development Agreementwith China, aimed at enabling the exploitation of the “Asunaru” offshore gas field. Remarkable
are also the Japan-Taiwan fishery arrangements, with the simple status of arrangements, since
the International Society does not recognize Taiwan as a State. In parallel, China and Korea also
signed a bilateral Fisheries Agreement in 2001, establishing a “Provisional Measure Zone” and“Transitory Fishing Zone”.
Nonetheless, there remain issues between these parties, and little coordination exists
among the mentioned instruments. Given that each State decides unilaterally on its 200 nm EEZ
and CS, overlapping claims are practically inevitable. In view of this, Prof. Yanagihara suggests
the adoption of a more comprehensive multilateral boundary treaty as a long-lasting solution.
Concerning recent tensions in Sino-Japanese waters, in 2010 a Japan-UK Defense
Meeting final document agreed not only that unilateral land reclamation is illegal and to be
opposed, but also that maritime boundaries are to be clearly defined according to UNCLOS
provisions. One of the “heat questions” between both Japan and China is whether the features of
Okinotorishima do constitute islands according to UNCLOS article 121 or not. The question
remains unresolved, and Japan claims that at the time the islands were granted to JAPAN, there
was no UNCLOS.
During the debate, the speaker was asked to provide reasons why is it so difficult to reacha trilateral security agreement in the East China Sea. According to him, such an agreement iscertainly desirable, but agreements can be interpreted in varied ways, and it seems to be very
difficult to design lines that could be interpreted in the very same way.
The first presentation of the afternoon began with the analysis by Dr. Ernst Uhrlau(Former President; Federal Intelligence Service) of the geopolitical factors that steer Chinese
actions at its coast. The relevance of resources for a country with 1.3 billion inhabitants and the
4th vastest land mass in the world is undeniable. Not only water (to supply dry provinces of thecountry), but also energy and food resources are key points to any analysis. The relevance oftransport routes is not to be neglected as well.
Another factor lies on the economic approach, which is vital to the cohesion of theChinese society. During the Chinese transition to an exports model, led by Deng Xiaoping

(during the 1980’s), an implicit agreement between the Communist Party and the people offeredeconomic growth in exchange of “good societal behavior”. Therefore, it comes with no wonderthat China’s policies has ever since been about opening new markets, and exploring investment
frontiers, vide Africa and Latin America.
Concerning the South China Sea, the 9-dash line came about in the 1940’s by the
Republic of China, under the rule of Chiang Kai-chek, but later embraced by the Communist
regime. Initially, the line was designed from the point of view of resources, since no historicalentitlement was claimed back then. In fact, throughout history China has not given muchattention to the SCS for a long time, to the extent of being termed a “late comer to the Sea”.
As offshore exploitation became more and more important, the use of oil and gas deposits
in the area was inevitable. This generated conflicts in the region, which is the case of the micro
naval war between China and Vietnam in 1974. After the financial crisis of 2008, China assumed
the role of being the economic engine of the region, and did so in parallel with developing its
capability to become active in maritime matters. The Chinese have been tackling piracy off theSomali coast and established a base in Djibouti. Recently, China has modernized its Navy andacquired aircraft carriers. Therefore, the escalation of tensions is natural, and triggers a sort of“frozen conflict”.
As a result, Chinese actions have attracted US attention to the area. Under thegeopolitical concept of “Pivot Asia”, the Freedom of Navigation Operations (FONOPs) are apriority in countering excessive maritime claims. China protests vehemently against those
operations and reaffirms sovereignty over the disputed islands in the SCS, some of which are
already hosting commercial flights.
Currently, the conflict is on “stand by”, with the US engaging on FONOPs and China
resisting them. Major US worries include: the Chinese fourfold increase in its military spending
in recent years; the closer cooperation between China and Russia aiming at improving response
skills in maritime conflict scenarios; the massive infrastructure projects on ports and on
transportation networks, including the plan to establish a central Asia route from China toGermany. Regionally, trade volume is also a challenge to the US, as commerce between China
and regional countries is due to increase, whereas with the US is due to decrease.
Nonetheless, one thing will remain unchanged: China will continue to be a volatile player
with strengths and frailties to the eyes of the international community. Recent doubts on thesolidness of the Chinese economic development, with Chinese industries running on overcapacity, add fuel to that perception. International Relations history shows that domestic
difficulties are usually distracted by military maneuvers and a starker patriotic stance, and this
could just be the case with the militarization of the SCS.
Japan’s security policies to counterpart Chinese ambitions are not yet very clear. Bothcountries have a difficult relationship marked by “ups and downs”, and different militaryambitions in the region. While further power projections are expected from both parties, thereemergence of nationalistic policies in China and South Korea seems to be an issue of muchconcern to the Japanese authorities. Therefore, the need to sew coalitions with neighbors isimminent.
PANEL III – MARITIME SECURITY ISSUES
The presentations held in the third Panel of the Conference displayed a vibrantgeopolitical approach and offered views on the recent ratcheting up of tensions in the SCS. Dr.
Michael Paul (German Institute for International and Security Affairs (SWP)) highlighted boththe military escalation, as Beijing places missile launchers in disputed islands, and the legality
and relevance of the US FONOPs in this context. He gives a brief legal overview on the mareliberum principle, on the shared resources regime and on the notion of “global commons” in themodern Law of the Sea.
The move to oppose the mare liberum is historically known as mare clausum and resultsin the “territorilization of the seas”, according to which the coastal state exercises sovereignty
over the waters nearby its shore. The argument is straightforward: coastal countries should havethe right to regulate military activities in their maritime zones. However, China allegedly claims
for exclusive access to its entire EEZ, what would ultimately represent a breach to UNCLOS andto the international principle of the freedom of the seas. If taken too radically, this claim would
imply the collapse of the international system, as sea lanes would be entirely privatized. Other
countries in the region, such as the Philippines, Malaysia and Viet Nam have explicitly opposed
Chinese claims.
Therefore, UNCLOS has kept the right of innocent passage on territorial waters, despiteother States’ jurisdiction and sovereignty (art. 17). This right may be exercised without previous
permission. Thus, the US initiated its FONOPs in 1979, to make sure there is no acquiescence toexcessive sovereignty claims. The Program encompasses civil and military exercises, as well as
cooperation measures with regional nations. Recent FONOPs were conducted in October 2015
and January 2016, purportedly designed in strict accordance with International Law. Given that
Beijing also carries its own FONOPs and possesses a Navy capable to monitor the high seas,
current tensions between the US and China represent a real threat.
Another objective of such operations is to demonstrate that the building of artificial
islands does not generate EEZ or TS. In case of reefs and shoals, one should not even refer to a“right of innocent passage”, because there is no coastal baseline, and consequently nosovereignty over adjacent maritime zones. By doing so, the US expects to prevent severe
limitations to the world’s most important trade channel.
Difficulties in reaching a diplomatic solution are, therefore, clear. Due to sacrosanct
domestic claims by Beijing, and to the willingness to uphold the mare liberum principle byWashington, there is room for escalation whenever a FONOP is led. Amongst measures to easetensions, bilateral cooperation and joint maritime usage of the shared sea, as well as theimplementation of capacity building programs could represent viable steps towards peace andsecurity in the area.
The next presentation, by Captain Dr. Nakamura Susumu (Japan Maritime SelfDefense Force; Command and Staff College) analyzed the specific Chinese maritime claims in
the South- and East China Sea. Claims that are allegedly drawn from excessive baselines, place
the totality of the SCS being under Chinese jurisdiction, do not recognize airspace above the
EEZ as international airspace, and that oppose legal military activities in the entire region.
A detailed historic panorama of the Chinese advancement in the SCS shows that since1950, after the French withdrawal from the region, China has claimed firstly the Paracel Islands,
later the Spratly Islands (1988), the Mischief Reef (1995), and finally the Scarborough Shoal(2012). Initially, claims were of a pure territorial nature. However, as natural resources werediscovered in the area, economic benefits became the chief motivation to have a larger EEZ.
A special focus was given to the Chinese “9 Dash Line”, designed initially in the 1930’s,
when the Republic of China asserted that the islands in the SCS were part of its territory. Since
then, the line has been constantly changing, what shows inconsistency in its claims. In 2014, theUS officially objected to the “9 Dash Line”, stating that it does not match general International
Law nor UNCLOS, on the basis that maritime boundaries cannot be established unilaterally, but
only by means of negotiation.
Equally problematic to Japan are the Chinese theories of “state jurisdiction area” and“ocean territory”, which allegedly considers the EEZ as Territorial Sea. According to China, theEEZ is not international waters, and based on that it criticizes the FONOPs carried out by the
US. In order to hamper US involvement in the region, Beijing counts on three major “warfarers”(media, legal, psychological) to handle the issue domestically and internationally. Capt.
Nakamura also mentioned growing concerns on devastating ecological effects that the artificial
construction of islands have on the ecosystem and marine environments of the SCS.
Regarding the East China Sea, maritime boundaries are unsettled and overlapping claims
with Japan exist, especially on the Senkaku Islands. Despite the unclear boundaries, China has
installed 16 offshore oil platforms on the disputed area, and since 2012 sharply increased thenumber of operations on the Territorial Sea around the disputed islands. All that allegedly inviolation of mutually agreed notification systems, which impose a 6 months’ notice prior to any
action on the contested waters, a rule that has repeatedly been disrespected by Beijing.
Following that presentation, Dr. Wolfgang Pape (Policy Officer; Center for European
Policy Studies (CEPS)) aimed at shifting the approach from confrontation to cooperation in theregion. In order to do so, he identified potential causes to ongoing tensions and advanced his own
theory on the best approach to ease them. Firstly, one should not neglect the problem of the“Asian paradox”, a dualism between high-level and interdependent economic exchanges, butlow-level regional political interaction, due mainly to historical differences. Secondly, the cultureof “name and shame” in Asia also represents an obstacle to the implementation of politicalcooperation.
With a particular focus on East Asia, it is clear that countries have global traders, but
nationalistic politicians. In one of the tightest trade networks of the whole world, business people
are warm and welcoming, whereas politicians are “ice cold” before each other. In fact, politicalleaders hardly ever connect in substantive exchanges, as it was the case between Abe, Park andXi for more than three years. The peril of such paradox is clear: not talking leads to extremism,
inspires nationalisms, and hate speeches.
In this troubled scenario, Taiwan’s contribution could shed light on possible ways toapproach issues. Based on field visits, Dr. Pape attested that despite the Japan-Taiwan Fishery
Agreement of 2013, fishermen from both countries were more pragmatic and did cooperate
directly with each other, without the need for an imposed treaty.
Therefore, one possible avenue to ease tensions in the region is to shift focus from theWestern-imposed concept of “nation” towards a multilateral attitude. Dr. Pape believes that an“omnilateral” system would represent an even better alternative, in which local governmentsbuild up policies from the local level, with civil society participation. Such an idea could work,
since Asia has traditionally been flexible, with governance based on networks of interested actors(instead of merely “States”).
The interconnectedness of today’s world is incompatible with conventional mindsets.
Asia needs to surpass unresolved problems from World War II and combine efforts to shape an
Asian identity, which would serve as ground for further unity based on commonalities between
traditions from China, Japan, Korea and neighbors. There are already several initiatives to foster
amity, peace, cooperation, joint development of resources, hotlines for times of emergency,
amongst other projects in the area. In fact, whenever the idea of sovereignty is put aside for a
moment, cooperation emerges in several ways. It has been the case of the trilateral cooperation
CKJ (China, Korea, Japan), and the establishment of the “Trilateral Cooperation Secretariat” in
2011.
In the light of the above, the concluding proposal advanced by Dr. Pape is to abandon
confrontation at nation’s frontlines towards cooperation with all stakeholders omnilaterally.
In his presentation on the European Soft Power in Asian seas, Dr. Joshua Walker(Transatlantic Fellow in the Asia Program; German Marshall Fund of the United States) began
his presentation by emphasizing how relevant Europe and Asia are in terms of world population,
trade and naval power. Both continents together represent approximately 62.5% of the world’s
population, and 57% of the world’s GDP. Mutual trade volume amounts to 809 billion EUR, ofwhich a great share is dedicated to manufactured, technological, and high value-added goods.

A current challenge to stability between those continents is China’s defiance of themaritime Rule of Law. Asian countries are in the uncomfortable position to oppose Chinese
claims, a reason why Western allies are so relevant. In order to tackle that, Europe and Asia needto combine efforts and strengthen cooperation, both in civil and in military terms, particularly as
the US traditional strategy of conventional warfare does not suit the complexity of tensions inEast Asia.
In this scenario, one should distinguish conventional from unconventional actions(escaping the traditional divide between “military and non-military”). From this angle, Beijing
adopts unconventional measures, in a more subtle and fluid approach to its interests, unlike moreconventional players, such as Russia. China insists on handling maritime border disputes on a
one-to-one basis, and the role of European nations would be precisely to oppose that and tofoster multilateral approaches.
Amongst the alternatives, the NATO-Japan partnership constitutes a feasible andpromising approach to balance political struggles in the region. 4 Both parties would benefit
immensely from that cooperation, especially Germany, to whom the work on a framework suchas NATO proves relevant for long-term, peaceful negotiations in East Asia.
Moreover, the US counts on the European soft power in Asia, especially after realizingthat one State cannot solve the world’s problems. In order to avoid isolacionisms, a concerted
multipolar approach would pose China a major challenge, and NATO’s involvement would
complicate Beijing’s strategies. By having NATO engaged in the SCS and ECS, interested
countries would leave the traditional bipolar approach and invest in multipolarity. This idea,
however, did not go without criticisms from the participants.
During the debate, participants asked questions on the likelihood of a NATO-Japan active
partnership leading to confrontation and having Beijing feel trapped. Despite acknowledging thispossibility, Dr. Walker believes that NATO should not restrict itself to the North Atlantic, butshould promote cooperation worldwide, for instance with the help of partners such as Japan andIndia in terms of intel, navy drills and closer defense collaboration. NATO is also a means
through which Germany could interact with complex issues in Asia.
Another query focused on the US ability to handle “frozen conflicts”, such as the ones
created and managed by Russia and China, where authoritarianism acts as a fertile ground for
those conflicts. Besides, it was noted that multipolar approaches are relevant, but personal
diplomacy is not irrelevant, as it could be the case of a possible agreement between Mr. Abe and
Mr. Putin.
PANEL IV – DISPUTE SETTLEMENTS ACCORDING TO UNCLOS
4

Japan was the first partner outside the original geographic area of NATO. In fact, according to the official websiteof the Organization, “Japan is the longest-standing of NATO’s ‘partners across the globe’”. Available at:
http://www.nato.int/cps/en/natohq/topics_50336.htm. Visited on: 23 Mar 2016.

The widespread significance of UNCLOS in the international arena lies, among others,on the fact that “it provides a comprehensive regulatory regime for all matters maritime, without
being the typical framework convention so frequently encountered in other branches ofinternational law.” 5 Having that in mind, the three presentations of this Panel focused on legal
aspects related to the Law of the Sea.
Firstly, Prof. Dr. Kawano Mariko (Waseda University) held a speech on the maritime
dispute settlement procedures available in International Law, with a particular reference to theJapanese experience with those procedures. She analyzed not only the peaceful means of dispute
solution, but also the so-called “compulsory jurisdiction”, which combines the prohibition of
threat or use of force and the obligation to settle disputes in accordance with the Rule of Law. It
is founded on UNCLOS Part XV, Section II, and among its main provisions is the one attributing
discretion to States to choose among the adjudication bodies to entertain the dispute.
In order to resort to compulsory jurisdiction, interested parties need to fulfill certain
conditions, such as the obligation to exchange views (UNCLOS Art. 283). It was the case in theSouthern Bluefin Tuna (1999), Chagos Archipelago Case (2011), Arctic Sunrise (2011), andPhilippines v. China arbitral award (2015). Besides, States must submit a declaration accepting
sections II (compulsory jurisdiction) and III (limitations and exceptions to the compulsory
dispute settlement), and choose the means for the settlement of the dispute.
The compulsory dispute settlement system contributes to the final legal settlement ofdisputes. Further, UNCLOS offers mechanisms enabling States to jointly use natural resources in
disputed maritime areas pending a final decision, in line with articles 74 and 83. In such cases,
interested parties are required to abstain from unilateral measures that could negatively alter the
disputed area, as in the arbitration between Guiana and Suriname (2007).
The Japanese experience in international dispute settlement bodies includes the 1999
Southern Bluefin Tuna Cases between Japan and Australia, and Japan and New Zealand, before
ITLOS. As a result, Japan abided by the provisional measures Order issued by the Tribunal, who
considered that the parties should “act with prudence and caution to ensure that effective
conservation measures are taken to prevent serious harm to the stock of Southern Bluefin
Tuna”. 6 Another case is the one between Japan and Australia, New Zealand intervening, on
whaling practices in the Antarctic, adjudicated by the ICJ in 2014. In that incident, the Court
concluded that the Japanese Whaling Program was not purely scientific, and that the capture ofwhales was illegal. Consequently, Japan voluntarily abided by the decision and submitted
another scientific whaling program to the scrutiny of the International Whaling Commission(IWC).
5

See GAVOUNELI, Maria. From uniformity to fragmentation: the ability of the UN Convention on the Law of the
Sea to accommodate new uses and challenges. In: STRATI, Anastasia; et alii (Eds.). Unresolved issues and newchallenges to the Law of the Sea: time before and time after. Leiden: Nijhoff, 2006, p. 205.
6
Provisional Measures Order, Southern Bluefin Tuna Cases between New Zealand and Japan, and Australia andJapan, International Tribunal for the Law of the Sea, 27 August 1999, para. 77.

Dr. Kawano concluded by stating that most effective way to prevent disputes is toencourage effective cooperation before conflicts surface. Nonetheless, in face of difficulties tosettle disputes by peaceful means, resort to compulsory dispute settling mechanisms represent a
hope in solving conflict in a civilized and definite fashion.
Following that explanation, Prof. Dr. Andrew Serdy (University of Southampton)
dedicated his presentation to the analysis of legal impasses relating to the outer limit of
Bangladesh’s continental shelf and the delimitation of maritime boundaries with neighboring
countries. Generally, coastal states have sovereign rights over the continental shelf (UNCLOS
art. 77), and the CS consists of the seabed and subsoil of the submarine areas extending beyond astate’s territorial sea throughout its continental margin, and is limited to 200 nautical miles.
However, in line with UNCLOS art. 76, and based on technical and scientific data,
countries may forward submissions to the Commission on the Limits of the Continental Shelf(CLCS) 7, a permanent body created by UNCLOS and responsible for analyzing the geographic
data, and accepting claims or calling for revised submissions. In the current system, there isstrong incentive for coastal states to make submissions, because of the final and binding natureof the recommendations by the Commission.
The presentation focused specifically on the overlapping maritime boundary claims on
the Bay of Bengal between Bangladesh and Myanmar, a dispute ultimately settled by ITLOS in
2012. The case was entertained despite a clear impasse over Bangladesh’s submission to the
CLCS and its blockade by neighboring countries. Prof. Serdy analyzed the decision held by
ITLOS and reached the conclusion that the establishment of a much commented “grey zone”
between both parties is not the only problem. The production of “grey areas”, where one of theStates has sovereign rights on the seabed and the other has rights over the water column, isgrounded on UNCLOS article 78. These areas were not anticipated by the drafters of theConvention, but are not excluded by the wording of the Convention, and were the solution foundby ITLOS to settle the dispute. 8
The other grave issue is the troublesome relationship between ITLOS and the CLCS.
Based on the Commission’s own Rules of Procedure, submitting States were overimplementing
Art. 76 (10) of the Convention and blocking each other’s submissions to the CLCS, alleging that
the Commission cannot examine submissions over disputed areas. The problem in the specificcase emerged when “despite the absence of CLCS recommendations, which should comelogically first, ITLOS was prepared to extend the boundary with Myanmar beyond 200 nm”.

7

The Commission in one of the treaty bodies devised at UNCLOS, responsible for scrutinizing Submissions for therecognition of outer CS requests and, in parallel, offering states legal and technical advice for drafting submissions.
Marked by and interdisciplinary body of experts, the CLCS started office on 1996. The structure, composition andfunctions of the Commission are present in Annex II of UNCLOS.
8
Before the ITLOS ruling, Australia and Indonesia had already signed an Agreement in 1997, not yet into force, thatserved as an example of a possible “grey area” between countries with overlapping claims.

It is unfortunate that those Rules are still valid. The CLCS interprets opposing claims as
disputes, and gives States leeway to halt indefinitely procedures before the Commission. Prof.
Serdy is of the view that the CLCS should be able to entertain submissions despite objections
raised, given the body’s neutral nature. If it does not happen, a solution for such cases would be amutual lifting of objections from all interested parties, so that the CLCS could perform its work.
Only recently, after 15 years of uncritical acceptance of the flawed CLCS Rules of Procedure,States are complaining about the indefinite blockage of their CLCS submissions by disputes,
what might lead to different approaches by both States and Commission in the future.
Finally, Dr. Suzette Suarez, who analyzed the Philippines-China arbitration proceedings
and its prospects to ease tensions and settle disputes in the SCS, held the last speech of theConference. Initially, she offered a brief overview on the UNCLOS dispute settlement
mechanisms, according to which member States may resort to compulsory arbitration in case of
failure of previous peaceful solutions attempts.
Grounded on that option, the Philippines forwarded 15 submissions against China to the
Arbitral Tribunal according to UNCLOS Annex VII. Amongst the legal questions raised, thePhilippines wished to clarify the applicable law to ongoing disputes in the SCS, and whether the
Chinese “9 Dash Line” is in accordance with UNCLOS. Moreover, the Philippine delegationinquired whether certain geographical features in the disputed area (such as reefs, shoals andsand banks) are rocks or low-tide elevations, and therefore not entitled to maritime zones at all.
Noteworthy is also the attempt to bring ecological considerations into scene, based on theargument of the harmfulness of Chinese activities to pristine ecosystems in the region.
To this point, China has not demonstrated willingness to take part in the proceedings.
Beijing asserts that the Philippines have breached a bilateral binding Agreement, as well as the
UNCLOS, when it decided to initiate arbitral proceedings without having exhausted negotiations
first. Secondly, China is of the view that the Arbitral Tribunal has no jurisdiction, given that the
Chinese have opted out from the compulsory procedure, in line with its written declaration thatposes reservations to maritime delimitation disputes.
Despite China’s “no-show”, in November 2015 the Arbitral Tribunal published an award
upholding its jurisdiction to entertain some of the legal questions raised. It concluded that thebilateral Agreement was not a binding instrument, but mere arrangement that did not impede theacquisition of jurisdiction for the case. Besides, some questions brought before the judges areneither of territorial nor of maritime boundary dispute nature. They involve the interpretation of
the Convention on different aspects, and the Arbitral Tribunal may decide on matters ofinterpretation of conventional norms. According to the award, territorial aspects will not be
prejudiced, as the Arbitral Tribunal will not adjudicate on territorial assertions.
Dr. Suarez finalized her presentation by cautiously concluding that the arbitral award
does not yield powers to lead to a final settlement per se. Indeed, the conflicting parties would
need to resume negotiations immediately after its publication, if a long-lasting solution is to befound. A positive aspect is that the award has narrowed down the scope of disputed issues, what
could suggest better chances of having an assertive decision on the merits of the case. Moreover,a pronouncement by the Arbitral Tribunal would instantaneously become a source ofInternational Law, as it would be the first of its kind to address the question of the legal nature ofislands, rocks and low tide elevations.
-The overall impact of the Conference is undoubtedly positive, as the presentations
covered a wide range of complex political and legal issues and examined several different
scenarios connected to maritime security challenges in Asia. Practitioners and political strategists
shared views with international lawyers, in a fruitful dialogue between “Real Politik” perceptions
and idealist views concerning maritime disputes settlement. The Conference’s core final message
is that of the need to develop a modus vivendi regulating relations between States in the seasaround China, an end to be met through different means, such as further cooperation, regional
integration, and respect for the maritime international Rule of Law.