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シリーズNo.5 オーシャン・ガバナンスの法制面、機構・制度面、実施面の考察

 事業名 海洋シンクタンク事業
 団体名 シップ・アンド・オーシャン財団  
2.  The Commission on the Limits of the Continental Shelf
 
 This Commission was established in 1997, in accordance with the Convention. The function of the Commission is twofold: to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where these limits extend beyond 200 miles from the base lines and to make recommendations regarding their acceptability to the authority; and, second, to provide scientific and technical advice, if requested by the coastal State, during the preparation of these data. The coastal State has the obligation to declare agreed boundaries within ten years after the Convention enters into force for it.10 In most cases, that is the year 2004. In some cases, it is a few years later.
 
 The Commission meets twice every year. It has performed excellent technical work in elaborating scientific and technical guide lines, but two major difficulties have arisen, both due to the immense complexity of Article 76 of the Convention, which defines the limits of the continental shelf. The first difficulty is that it is extremely difficult and costly to prepare for this declaration, and most developing countries are simply not able to complete this work. The Commission is responding in three ways: Some States may be granted an extension of at least one year to complete the task; the Commission is now organizing 5-day training programs for experts from developing countries to assist them, and a trust fund has been established, generously endowed with a million dollars by the Government of Norway, to pay for this work. Alas, it is easy to predict that neither the one-year extension, nor the 5-day training, nor the $1 million will suffice to solve the problem. The second difficulty that has arisen is that a number of States have already advanced claims far exceeding the boundaries, as defined, not without ambiguities, in Article 76.11 It is not impossible that there will be more such claims, especially if, with advancing technology, resources will be discovered in the boundary area between the International Seabed and the coastal State. If boundaries cannot be agreed on, this threatens to destabilize the Convention regime and undermine the efficiency of ocean governance.
 
 In the document submitted by the IOI to UNICPOLOS I,12 an alternative approach is put forward which might contribute to safeguarding the integrity of the Convention.
 
 This approach is based on the recognition of a general trend, apparent during the past decades, to enter into agreements on joint development or joint management zones, temporary or permanent, in cases where there are overlapping claims between States with adjacent or opposite coast lines.13 As at least one scholar has tried to demonstrate,14 this practice, firstly, has become by now customary international law and, secondly, it would be in accordance with international law to apply it not only to areas between States with adjacent or opposite coast lines, but just as well to areas between a coastal State and an international institution, in this case, the International Sea-bed Authority.
 
 Instead of spending many millions of dollars, and probably not solving the problem, it most certainly would be far simpler, more cost-effective and more productive, if coastal States with extensive boundary claims could be given the option of freezing these claims and establishing instead joint development or joint management zones, with the Authority, let us say extending from 300 to 400 miles from the base line. The agreement might provide, as a minimum, for joint monitoring of the environment, as a maximum, for joint resource exploration and production. Such agreements would be highly beneficial for both parties. They would facilitate implementation of Article 142;15 they would stimulate activities of the Authority, and they would assist coastal developing States in the exploration of their outer continental shelves.
 
 Freezing the boundary claim could be interpreted as making a submission in accordance with Article 76, and the introduction of this practice could probably be made without the need of an amendment through a meeting of States Parties.
 
 The Commission on the Limits of the Continental Shelf is in any case a temporary institution of ocean governance. As conceived by the Convention, its activities would cease when all the boundaries have been declared, once and for all. The introduction of this alternative option would shorten this time.
 
3.  The System for the Peaceful Settlement of Disputes
 
 This system is a fundamentally important piece of ocean governance, and one of the most successful parts of the Law of the Sea Convention. The system, basically, has 5 components: the International Tribunal for the Law of the Sea, the International Court of Justice, arbitration and special arbitration tribunals, and conciliation commissions.
 
 The International Tribunal in a way is the center piece. The initial difficulties it encountered were lack of cases and competition with the ICJ, based on duplication of competences. There are scholars16 who are of the opinion that the Tribunal is nothing but a drain on resources and has no raison d=etre. Maritime disputes, including boundary disputes, can, and have been, settled in existing institutions, the ICJ and arbitration. The Tribunal's only useful function would have been exercised by the Sea-bed Chamber in cases involving the interpretation and implementation of Part XI of the Convention, but since no sea-bed mining is taking place, there will be no occasion to make use of this Chamber for the foreseeable future.
 
 In the meantime, the Tribunal has had a number of cases, and delivered its judgments swiftly and competently, building up credibility and confidence. There are, however, still loop holes in the system of dispute settlement - for instance, with regard to shipping, open registries, and the responsibilities of flag states, in the context of the globalization of the shipping industry, which often makes it impossible to identify the real culprit and to apprehend and try him.
 
 The globalization of crime, including crimes at sea, may pose other novel problems. The number of cases of piracy and armed robbery is rising at an alarming rate. Often these crimes are connected with the drug trade or with the illegal transport of persons and the activities of other global cartels of criminals. Supposing that, with the increased emphasis on implementation, compliance, and enforcement observed in many fora today, the apprehension of criminals at sea will become more effective than it has been. Where is the master of a pirate ship registered in a open registry state with no control over him, but whose nationality the ship retained in accordance with Article 104 X where is he to be tried? Surely, the globalization of crime elicits in response the globalization of justice. As we have already International War Crimes Tribunals, Human Rights Tribunals, the need may arise for an international tribunal for international crimes at sea to which all such cases would mandatorily be submitted. And that tribunal could be the International Tribunal for the Law of the Sea.
 
 Also this component of ocean governance will evolve with changing times.
 
4.  The Meetings of the States Parties to the Law of the Law of the Sea Convention
 
 The United Nations Convention on the Law of the Sea provides, in article 319, paragraph 2 (e), that the Secretary-General “shall convene necessary meetings of States Parties in accordance with this Convention”. The first Meeting of States Parties (SPLOS) was convened in New York on 21 and 22 November 1994, immediately following the entry into force of the Convention. As of 2000, there have been 10 Meetings of the States Parties to the Convention.
 
 The Meetings have dealt primarily with elections of the members of the International Tribunal for the Law of the Sea and of the members of the Commission on the Limits of the Continental Shelf as well as with budgetary and administrative matters of the Tribunal.
 
 The mandate of these meetings in fact are limited more strictly to the consideration of these administrative matters than is the case under other convention regimes. Also in this respect, however, interesting developments are in course. A number of States Parties have begun to feel the need for an expansion of the mandate of these meetings. Discussions, in the Commission on Sustainable Development, especially CSD7, on the need to establish a mechanism to facilitate an informed discussion on the Secretary-General's Annual Report on the Ocean and the Law of the Sea in the General Assembly, stimulated this unrest.
 
 During the 10th Meeting, a submission by Chile was discussed, proposing the inclusion of a new item in the agenda of the next Meeting of States Parties, entitled either “Implementation of the United Nations Convention on the Law of the Sea”or “Issues of a general nature related to the United Nations Convention on the Law of the Sea.”17 The submission referred to the discussions which had taken place at the ninth Meeting on the characteristics and the work of the Meeting of States Parties.18 It proposed, inter alia, that the Parties to the Convention should consider the implementation of the Convention. To that end, the Meeting of States Parties would receive a report from the Secretary-General of the United Nations every year on issues of a general nature that had arisen with respect to the Convention, as provided for in article 319 of the Convention. In addition, the Meeting would be informed of the work in the Commission on the Limits of the Continental Shelf and the International Seabed Authority, without prejudice to their sphere of autonomy and, where applicable, the necessary confidentiality.
 
 Reactions to the Chilean proposal were mixed, but a certain rivalry appeared to emerge between the Meeting of States Parties and the newly established UNICPOLOS, and some questions were raised as to the relations between these two institutions.
 
 In the broader context of ocean governance, these relations appear quite clear. There appears indeed to be a need to expand the mandate of the SPLOS meetings to consider questions arising from the implementation of the Convention or the need for amendments or protocols or implementation agreements to adjust to changing situations. The problems of the International Sea-bed Authority may be the first that need to be considered and acted upon by the meeting of the SPLOS.
 
 The legal framework for ocean governance, however, is considerably broader now and includes Conventions, Agreements and Programmes whose membership may be different from the SPLOS. The meeting of the SPLOS would not be competent to deal with questions of overlaps or conflicts between all these regimes. Only the General Assembly, with its universal membership and broad mandate would be competent, and it is the task of UNICPOLOS to facilitate discussion and decision making on such matters, on the basis of the Secretary-General's Annual Report.
 
 This division of labor between the SPLOS and UNICPOLOS will remain what it is - at least until membership in the Law of the Sea Convention will be as universal as the membership of the General Assembly, and therefore of UNICPOLOS. At that time one might consider a merger between UNICPOLOS and SPLOS as cost-effective.
 
 It clearly results from the preceding four sections that the contribution of the LOS Convention itself to the establishment of an institutional framework is of considerable importance. While this framework is far from complete, each one of the components is in a process of evolution. This evolution will now take place in the broader context of the institutional framework emerging from the UNCED process, which shall now be examined.








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