Whereas last year's theme was "Protecting the Ocean," the theme of this symposium is "Securing the Ocean." I'd like to offer my thoughts on the differences between these similar-sounding themes. At the Ship and Ocean Foundation (SOF)'s Institute for Ocean Policy, our contribution to the theme of "Securing the Ocean" is to propose a new concept of ocean security. Traditionally, the concept of security is viewed as a matter of war and peace; in short, military security. If not examined in detail, the term "security" suggests a closed perimeter, protecting from an outside threat. This is not always an accurate portrayal of the problem, and for this reason terms such as "food security" and "information security" should be avoided. We believe the term "human security" is much more appropriate, as it refers to the establishment of safe conditions for people, in the context of national security. By adopting the "human security" approach, we can attempt to overcome criticisms of conventional ODA by ensuring that the effects of aid reach the roots of civil society, empowering individuals within that society and helping them to become self-reliant. This shift in emphasis marks the first time that the concept of the "transmigration of the concept of peace," originally mooted in the 1960s and 70s, has been taken up as a real political issue. "The transmigration of the concept of peace" was postulated by Rappaport and other peace researchers. For these researchers, peace is more than merely the absence of naked physical violence, as this is no more than a state of "negative peace" that cannot sweep away the people's sense of lack of peace, which we might call "peacelessness." The discrimination and disparity between rich and poor that are built into our societies are manifested in the problems of hunger and inequality of medical treatment. Since these are problems that have the power to snatch life away, the scale of their implicit violence can best be measured by the death toll they cause. This "structural violence" contributes to the peacelessness we experience today. When this peacelessness is conquered, we achieve a true state of peace, dubbed "positive peace." In the Human Security Project, our criterion for security is that real people in civil society feel a palpable sense of being personally secure. When our society shifts its view of security to this perspective, an important step in the development of humanity will have been taken.

 The shift from protecting the ocean to securing the ocean involves one more change in perspective. This involves the change in international politics and political science from regime theory to governance theory. In conventional international relations, states that have conflicting interests in a given field or issue meet to uncover a common interest and reach agreement on that basis. In this way each set of problems is handled separately, as a self-contained system in which each point of dispute is carefully isolated. We speak of trade regimes, environmental regimes, human-rights regimes, and so on. During the Cold War, paramount importance was placed on military strength; as the Cold War ended, military tensions eased, and nations had to solve their problems through international dialogue. A new structure for discussion was needed to straddle the various regimes. In the most advanced regime, the trade regime, environmental and human-rights issues are coming to be viewed as trade-related issues, occupying a place of central political importance. As regimes increasingly address multiple issues, the legitimacy of the regime approach becomes an important question. The rise of protest movements in civil society against institutions like GATT, WTO and the IMF represent just such a challenge to the legitimacy of these institutions.

 The theory that has emerged to replace regime theory is governance theory. Of course, no single political mechanism exists for the governance of international society; the formation of an international order must be approached through a gradual process of agreement. Yet the international community does provide for public regulations that transcend individual national interests. Governance theory deals with the regulation of individual national interests with focus on supporting a common order in international society. The phrase "governance without government" can be understood in this context.

　

 In the sense just described, there is much in common between the shift from protecting the ocean to securing the ocean and the abandonment of regime theory in favor of governance theory. The traditional ocean regime includes several sub-regimes, such as the high seas fishing industry regime, the air traffic regime, the environmental regime and the mining regime. Under these lie the individual regimes, such as the regimes of regional fishing treaties and the Antarctic environmental regime. The ocean regime involves coordination among the interests of a wide range of ocean activities, and is therefore a rich trove of human intelligence on negotiation among various regimes. In this sense the governance theory has already been deployed for a long time in this field. Examples include exclusive rights in territorial seas, the right of innocent passage for foreign vessels, environmental preservation, comprehensive freedoms in the high seas, the flag-state jurisdiction, exceptions to these provisions in laws to combat piracy, and regulations in the high seas on sealing, whaling and the fishing of salmon and trout. However, the ocean regime is a self-contained cross-regime system, in the sense that it involves coordination among its various sub-regimes but is separated from the land regime in both legislation and execution.

 Simply put, the separation between the ocean regime and the land regime means that the ocean regime deals only with problems specific to the maritime domain, while the land regime deals with land problems. Because the ocean regime cannot deal with land issues, it is unable to deal with the problems of the people who live on the land. For example, despite the fact that the overwhelming majority of marine pollution is generated on land, the ocean regime is confined to dealing with vessel-source pollution. Although spills from damaged oil tankers are dramatic and cause large-scale damage to coastlines, by far the greater part of marine pollution originates in the people on the land, their living patterns and the way their lives are regulated. Land-source pollution affects a wide swath of the marine environment, including the high seas, domestic jurisdiction only extends the territorial seas over which the various states have sovereignty. Land-based problems are essentially under the jurisdiction of sovereign states. The United Nations Convention on the Law of the Sea (UNCLOS) tries to tame Behemoth while leaving Leviathan untouched.

 Similar problems of jurisdiction arise with the problem of piracy, which is thought of strictly as a major crime of the high seas. If pirates were recognized as a hostis humani generis, an enemy of humanity, every country would be empowered, indeed required, to arrest and punish suspected pirates regardless of the waters they are in. Universal jurisdiction to intercept pirates is recognized in the ocean regime as an exception to flag-state jurisdiction, so that the vessels of any country may arrest pirates. However, universal jurisdiction applies only to enforcement in the high seas; it does not make states responsible for punishment or for the eradication of piracy. Whether to enact laws to punish piracy, even in the stereotypical example of pillaging of coastal areas by pirates, is left to the legislative discretion of individual states to criminalize and punish the crime in their own jurisdictions. Policing of acts of piracy in territorial seas is also regarded as a matter of the sovereignty of coastal states, so no negotiation has been undertaken regarding the execution of jurisdiction in this regard. At present the piracy (or to use the correct term, "armed robbery at sea") occurring with alarming frequency in the territorial waters of Southeast Asia goes largely unchecked because many countries do not effectively regulate their own territorial waters and fail to fulfill their responsibilities to control their territory and punish effectively crimes occurring in those waters. Territorial seas are more than ever under the exclusive jurisdiction of coastal states, yet despite technical assistance to improve these states' capabilities in marine police control, the measures are ineffective in raising the real security of societies in coastal states because the poverty and hunger that are the source of their problems are not addressed. Indeed, strengthening police capabilities while ignoring these issues only deteriorates public safety and exacerbates political instability. Residents of coastal states sometimes participate in piracy in their own territorial waters, which means that efforts to eliminate the pillaging of coastal areas by armed groups is best handled by individual states. Therefore, to strengthen the ability to interdict armed robbery at sea through international cooperation, it is necessary to eliminate poverty and hunger within the coastal states. Japan spends a prestigious amount of money on ODA in these regions, but this aid seems scarcely effective in fulfilling this goal. A new paradigm in international aid is needed with a clear focus on human security, promoting the economic independence of the people of these regions.

 Turning to high seas fisheries, in the middle of the 20th century the conclusion of regional fishery conventions formed a framework for conservation of fish stocks, focusing on individual maritime regions and specific species of fish. Little of consequence resulted from these conventions, and their ineffectuality was one of the factors in the establishment of exclusive economic zones (EEZs) in UNCLOS. In 1976 the United States Congress passed the Fisheries Conservation and Management Act, immediately extending the country's nautical boundary to 200NM. The preamble to the act noted that regional conventions had proved ineffective in conserving marine resources. Although the factors in this result are many, the primary cause was that, because the regional fishing conventions were agreements among countries participating in the fishery, the International Committee inflated the allowable catches provided in its conservation measures. The second cause was that the regional conventions were agreements among individual governments. In accordance with traditions of international law, the regional conventions bound only the countries that were signatory to them. Countries that did not sign these agreements thus obtained a free ride. Thirdly, regulation of catch in the high seas was strictly the responsibility of the flag states to which the fishing vessels were registered. Survey vessels dispatched to the fishing grounds had to rely on sampling to regulate the catches, and could only judge by the gross volume of the catch. When fishing countries took more than the catch allotted to them by regulations, unless the domestic fish market was too confused to take the catch, the catch was sold anyway, as the fish had in any case already been caught and were an important source of protein. In this way restrictions on catch were lightly regarded. Moreover, if the regulations were more strictly enforced, fishermen would complain that they were being punished for infractions while countries outside the regulatory framework could fish to their hearts' content.

 The introduction of the EEZ system was by no means a comprehensive solution. First, problems of conservation remained, particularly of fishery stocks of straddling species and highly migratory species. Second, the suitability of conservation measures by coastal states in EEZs was in question. When the International Tribunal of the Law of the Sea (ITLOS) ruled on the Southern Bluefin tuna Case, problems of scientifically based catch regulation were overshadowed by the fact that the operation of fishing fleets was outside the scope of the Convention for the Conservation of Southern Bluefin Tuna. This controversial case underscored the difficulty in establishing an effective order based on agreements.

　

 The 1982 UNCLOS offered a foothold in the climb toward international cooperation on governance in the world's oceans and was in this sense a "constitution for the oceans." As discussed earlier, ocean governance is an all-embracing issue, as the oceans cannot be secured without a comprehensive viewpoint that enfolds the regulation of maritime activities as well as the ways of life of people on the land. UNCLOS would be meaningless if it served only to stir conflict between seafaring states and coastal states. The ways of life of people on the land are multifarious, comprising natural conditions, climate, history, culture and the social fabric, and these conditions tend to dictate their attitudes to and interests in the ocean. Supporting this diversity while gaining maximum benefit for people from the oceans, within a framework of sustainable development, must be the goal of ocean security.

 I would like to examine the question of whether UNCLOS really offers a start towards the achievement of ocean government, using examples from several systems, and consider some of the problems involved. First, the Convention presented two new regimes for the regulation of the oceans: the EEZ system and the deep-seabed system. The principal aim of the former is to protect fish stocks and other marine resources and to protect and preserve the marine environment. Both the EEZ system and the deep-seabed system aim to amend the flag-state jurisdiction to award greater jurisdiction to the coastal states. First, these systems aim to provide systematic regulation of the causes of pollution in order to prevent marine pollution, and to promote international cooperation on this task, but further agreements are needed to supplement these provisions, as they offer only vague stipulations about pollution except pollution caused by ships. Pollution from vessels is governed in minute detail in these systems, which have attracted attention as amendments of the traditional flag-state system for their detailed stipulation of the bounds of port-state enforcement and coastal-state enforcement. These facts are well known and I will not dwell on them here, but what I wish to emphasize is that the criteria for coastal-state laws that underpin these states' enforcement role are in general accord with international standards (IMO standards) and are restricted to laws for the application of IMO standards. This close circumscription of coastal-state laws constrains the unlawful intervention in passing vessels. If these standards are satisfied, it is believed that they can be applied to the regulation of all vessels, even including those from countries that did not agree to the international standards. In this sense the IMO criteria can apply to a scope beyond the countries signatory to them. However this state of affairs is explained in the context of international law, its significance is that the IMO has acquired the authority to promulgate international law.

 In terms of the fishing industry, the Convention's provisions on EEZs, often called "territorial resource waters," require coastal states to ensure optimum use of resources and to protect fish stocks. This concept of "optimum use" goes beyond the earlier concept of "maximum sustainable yield" (MSY) to recognize broader discretion in considering coastal states' economic use of resources. On the other hand, reference is also made to economic benefits for the peoples of states other than coastal states, such as geographically disadvantaged states and those suffering from economic dislocation. In this sense the EEZs are a system strongly oriented toward ocean governance. Originally, in the high seas fisheries under the flag-state jurisdiction. the crews of deep-sea fishing vessels in waters far from their native lands were not necessarily concerned about conserving fish stocks, so the shared functions of the international community were entrusted to coastal states as a means to secure maximum sustainable development of fisheries. The result was that, if coastal states neglected disruption caused by their own residents or permitted unregulated fishing in restricted waters to maximize their catch, at the very least they would theoretically have failed to fulfill their duties as a coastal state in the management of their EEZ. For developing countries, the EEZ represents the recapture of coastal fishing resources from a large-scale, international deep-sea fishing industry, and its function largely consists of making a nation's own marine resources available for a role in the country's development. The assumption that coastal states will show proper concern for the preservation and sustainable development of their own fisheries is contained in the perspective of "optimum use.

 Under UNCLOS, coastal states and fishing states have only a general duty to cooperate on appropriate conservation measures with respect to the fishery stocks of straddling species and highly migratory fish stocks that inhabit both the EEZs and the high seas beyond them. From the coastal states' point of view, suitable management of these fish stocks is vital for conservation measures to be effective in the EEZ. Yet although coastal states' right to unilateral conservation measures is recognized in UNCLOS, in practice this right is denied. The problem arose from two important cases that emerged after the conclusion of UNCLOS. One of these was the Fisheries Jurisdiction Case between Spain and Canada, or the "Estai case." The other was the Southern Bluefin tuna Case, a dispute involving Japan, Australia and New Zealand. In each case a final resolution was reached through negotiation among the parties, but significant flaws in international law in terms of ocean government were exposed.

 The Estai case, named after the Spanish trawler in question, involved turbot, a straddling fish species. Canada, a coastal state, was a participant in the late-starting turbot catch. Nonetheless, reasoning that straddling species were subject to its regulatory measures to preserve stocks in its EEZ, Canada unilaterally extended its remit into the high seas. The Estai, a Spanish trawler, was already notorious in Europe as an unscrupulous fishing operator. In the Baltic and North Seas, EU seas governed by the EU Common Fisheries Policy, Spain was not recognized to have a share in the fishing catch. Because of depletion in the fish stocks, Canada had banned its coastal fisheries from catching turbot in its EEZ. Canada's motivation for extending these measures to the high seas was based on its conception of this straddling species as Canada's own resource; its unilateral move to extend the application of regulations within its EEZ to the high seas bore the strong appearance of an effort to enclose the turbot stock for itself. Without attempting to cooperate with Spain on the conservation or optimal use of the turbot stock, Canadian forces seized the Spanish fishing vessel in international waters, citing violations of its laws as a coastal state. In Canada's defense, the chances of meaningful dialogue with Spain on conservation measures were always slim. Moreover, Spain's focus on condemning Canada's action without attempting to negotiate on the conservation issue was also problematic. Ultimately the dispute was settled with the help of EU mediation, and agreement was at least reached on the narrow issue of the turbot stock. In terms of results, Canada succeeded in securing an agreement on conservation measures through its action in the Estai case. However, the fact remains that Canada continues to support its extension of the application of conservation measures, a matter of domestic law, from its own EEZ into adjacent international waters. This lingering state of affairs may well give rise to new disputes in the future.

 Rather different was the Southern Bluefin tuna Case. At the time of the dispute the parties were already signatory to a treaty on southern bluefin tuna and the coastal states (Australia and New Zealand) and the fishing state (Japan) were collaborating in measures to conserve the stock. Moreover, the treaty provided mechanisms for the resolution of disputes. However, negotiations broke down over the size of the resource and the potential catch, and Japan dispatched a survey vessel to study the catch for itself. The coastal states demanded a ban on this survey, presenting a case for this action to ITLOS. At heart in this dispute was an opposition between two fundamental principles: Japan felt optimal use should be determined on the basis of the best scientific evidence available, whereas the coastal states invoked the precautionary principle from the standpoint of the environment and biodiversity. This episode raises problems for the cause of ocean governance. Despite the prior agreement of a treaty among the three parties and a separately agreed mechanism for mediating disputes, the case was referred to ITLOS as a problem relating to UNCLOS. This action raised the issue of treaty parallelism. The same quandary arose in the Mox Plant case referred to ITLOS shortly thereafter, which exposed parallelism between UNCLOS and OSPAR, an environmental treaty. When multiple treaties differ in the regulations they apply and their procedures for conflict resolution, the questions arise of deciding which treaty's duties apply and which treaty's resolution mechanism is to be used. Solving points of issue that are disputed in multiple overlapping treaties is a serious legal concern for the cause of ocean governance.

 This dispute raised the problem of treaty parallelism because of conservation measures agreed between coastal states and fishing states. Leaving the Legal technicalities aside for the moment, in the case of the Southern Bluefin Tuna Treaty, a fundamental problem for ocean governance is the fact of a dispute between countries that were cooperating on the preservation of a resource within the framework of a treaty. Fishing vessels from South Korea, Taiwan and others fish in the same high seas but, since they are not bound by the duties imposed in the treaty, there is no basis for regulating their actions. For these third parties, the treaty simply provides a free ride and no issue of treaty parallelism arises. If such a dispute were brought before ITLOS as a problem under UNCLOS, the coastal states would have a case to bring against the fishing states. However, the provisions in UNCLOS on highly migratory fish species, which require members to make efforts to preserve and make optimum use of resources through conservation measures, are lacking in detail and offer little basis for judgment. This is where the limitations of relying on agreements on high-seas fishing, and therefore the limits of international law in achieving ocean governance, are exposed. Efforts are now underway to bring South Korea and Taiwan into the framework of the Southern Bluefin Tuna Treaty.

 As I will describe later, a convention on fishing in the high seas was later reached on straddling fish stocks and highly migratory fish stocks and some rudimentary rules and regulations were put in place. However, these apply to specific regions. To be effective in preserving fish stocks, they must be completed with the agreement of coastal and fishing states. Ocean governance is a new form of governance, preferential to neither coastal states nor fishing states. Bringing such an agreement among nations to fruition is bound to present some difficult issues.