Associate Professor, College of International Studies, University of Tsukuba

　

　

 The subject of this conference, "Securing the Oceans," reflects the problems of the international society since the adoption of the United Nations Law of the Sea Convention of 1982 (UNCLOS). Since its adoption, it has been proved that the UNCLOS does not provide all the solutions for the law of the sea and there have been emerged the new necessities of the international society because of the development of scientific knowledge and of the changes of international circumstances. These necessities can be seen in various fields. In order to deal with them, the following two common questions could be pointed out: firstly, how to assess the importance of international corporation and, secondary, what sorts of influences the national legislations and the conventions concluded for the purpose of the execution of the UNCLOS exert to the whole system of the law of the sea in international society.

　

 With regard to the first question, it is necessary to examine how to realize the balance between the requirements of the international corporation, on the one hand, and the respect of State sovereignty, on the other. One might also be required to consider the respect of the common interests of international community, which is one of the most important elements of the present international law in general.

　

 As far as the second question is concerned, it is required to examine the contents of national legislations for the execution of the UNCLOS and the ones of the conventions concluded in order to execute and complement the general obligations of corporation under the UNCLOS. As the UNCLOS does not provide concrete modalities for execution for all the obligations, it is necessary to assess to what extent and on which aspects the national legislations and the subsequent conventions have contributed to the execution and complementarity of the UNCLOS.

　

　

 The "Securing the Oceans," the subject of this conference reflects the development since the conclusion of the United Nations Law of the Sea Convention of 1982 (UNCLOS). Although the UNCLOS was intended to provide a conclusive system for the law of the sea, it has been proved that there are various problems that are not settled by it and that there emerged new demands because of accelerated development of scientific knowledge or of the change of circumstances.

　

 To deal with such new demands or to find a effective measures to face the new circumstances, it is important to consider two aspects that were significantly evolved since the conclusion of the UNCLOS; one is the increasing importance of international corporation and the other is the impact of municipal legislation of interested States and subsequent treaties concluded for the execution of the UNCLOS.

　

 Now there is a significant accumulation of State practice during the period of twenty years time since 1982 and it should be the time to assess the achievement of the system established by the UNCLOS (including municipal legislation and subsequent treaties) and examine the remaining problems in order to secure the ocean and to realize the sustainable utilization of the ocean area in peaceful ways.

　

 One of the basic principles of the UNCLOS for the allocation of jurisdiction of interested States is based upon the differentiation of ocean areas, i.e., territorial sea, exclusive economic zone, continental shelf, deep seabed and high seas. On the basis of such distinction of the ocean areas, the following rule function in principle; the coastal States obtain sovereignty in the territorial sea and sovereign rights in the exclusive economic zone and to the continental shelf whereas on high seas the freedom of the sea is in principle guaranteed and the flag States exercise exclusive jurisdiction for the control of the vessels of their nationality. This is the very basic principle of the law of the sea for long time. However, we have to admit that such a simple allocation of rights and duties among States cannot provide effective solutions for the new problems and for new demands. It might be suggested that the way to find the solution for such situations is the notion of the international corporation. As the drafters noticed such limits of the basic principle of the law of the sea, the UNCLOS, in itself, provides the rules with regard to the international corporation. However the practice since 1982 has proved that the measures on the basis of the international corporation have become more important.

　

 As the emphasis of the international corporation means the transfer or renouncement of the sovereignty or sovereign rights to a certain extent, how to balance of the international corporation and the respect of sovereignty plays a paramount role to realize successful system or regime for the international corporation. For this purpose, it is necessary to examine the extent to which the exclusivity of States jurisdiction should be modified, the justification of such system and modalities most effective and appropriate to secure the international corporation for specified purposes. In the examination of these issues, the subjects and objects of the international corporation should be clearly specified and the interests to be secured by each system of corporation should be carefully examined.

　

 For the purpose of the balance between the international corporation and respect of sovereignty and of the realization of the effective international corporation, it is necessary to examine the legal justification of the restriction on the exclusivity of the States jurisdiction. In the examination of these issues, the subjects and objects of the international corporation should be clearly specified and the interests to be secured by each system of corporation should be carefully examined. Considering the rights and duties on the basis of territoriality are general and conclusive, the international corporation, which leads to the restriction to them, should be formulated appropriately in accordance with the subjects and objects and it is necessary to address that such subjects and objects cannot be satisfied without the international corporation.

　

 The last point to be suggested with regard to the international corporation is the requirement of the consideration of the interests of international community as a whole. In the present international law, the general tendency is the increasing emphasis of the importance of the notion of "interests of international community." Such trend definitely exerts influences to the international corporation in the law of the sea.

　

 When the issues of the international corporation for the purpose of securing the oceans are discussed, we should pay attention not only to the interests of relating States or specific regions but to the ones of international community. Such an attitude is most required in the cases of the international corporation with regard to the environmental issues and to the elimination of terrorism.

　

 Another aspect to be reflected is how to execute and complement the rights and duties under the UNCLOS. Here the impact of municipal legislations and of subsequent treaties should be referred. It is true that the UNCLOS provide a conclusive set of rules for the law of the sea. However, it is also true that for various issues the UNCLOS provides only the rules of general nature or the rules to set the framework. Therefore, the UNCLOS leaves the room for municipal legislation or subsequent treaties for execution to concretize the general or framework obligations under the UNCLOS, complement its general rules or, in some cases, to fill its lacunae to realize the general purposes of the UNCLOS.

　

 Municipal legislation has a very important role in the law of the sea even before the UNCLOS. It has contribute and contributes to the development or, in some cases, to the change of the contents of the rules as far as it is considered to be permissible by the international community.

　

 Under the UNCLOS, the municipal legislation provides the basis for the exercise of the general rights and duties provided by the UNCLOS or concretizes them. Moreover, it could fill the lacunae of the contents of the general fights and duties provided by the UNCLOS. Moreover, it is also a measure to commence the change of the established but possibly obsolete international rules or set the new direction of the future developments. In the case not contrary to the UNCLOS, the accumulation of concrete municipal rules will possibly lead to the unified execution of the UNCLOS. In the case of the change, the attitudes of the other States might play a decisive role with regard to the survival of such legislation. The municipal law that is contrary to the established and obsolete international rules might be permissible or acceptable if it is accepted or followed by the other States.

　

 The Canadian amendment of the Coastal Fisheries Protection Regulations in 1994 is one of the examples where the new legislation which exceed the rights under the UNCLOS was not accepted by the other States. Although the government of Canada took the view that the object for conservation and management of straddling fish cannot effectively be satisfied without extending the jurisdiction over the EEZ, their new municipal law were criticized especially by the European Union. Such discussion lead to an international dispute when the Canadian coast guard exercised its jurisdiction over the Spanish vessels outside the EEZ and as a result of the discussion, Canada modified again the disputed rules. In relation to this dispute it should be noted that the Canadian legislation at least influenced the measures determined by the relevant international organization (NAFO) in the framework of international corporation.

　

 It is also very important to consider the relationships between the relevant treaties for the purpose of securing the oceans. For example the protection of marine environment or conservation and management of marine resources the UNCLOS just provide the general obligations to corporate and the concrete modalities of such international corporation are ceded to the treaties for its execution. The regional or international corporations are also established and managed by treaties. The more the number of such treaties increases, the more significant it is to consider how to coordinate the relationship between the treaties providing the rules with regard to similar subjects.

　

 It is true that the international law has provided certain rules with regard to the relationships between treaties, i.e., the principle that lex specialis prevails lex generalis and the one that lex posterior prevails lex prior. However, these basic principles of the law of treaties are considered to be applied only in the cases where the relationship of contradictory treaties is at issue. The dispute with regard to the relationship between the UNCLOS and the Convention for the Conservation of Southern Bluefin Tuna of 1993 is typical example of this question. In the cases of the relationship between the UNCLOS and its execution treaties or one between execution treaties, the provisions are not contradictory but rather concurrent. Each execution treaty establishes its own system and has its own sphere of application. In such situations, it is necessary to discuss the new rules for coordination with regard to the application of the rules provided by concurring plural treaties.

　

 As has been discussed briefly, there still remain many issues to be examined carefully to facilitate the international corporation to secure the oceans. However, for the States in Asia the international corporation is essential to realize the effective control of the ocean areas. It might be suggested that for this purpose some sort of mechanism for coordination of all the relevant interest is required.