Two major problems confront the promotion of ocean governance. One is that, in lawmaking, the principle of consensualism is one of the cornerstones of the international order. The other is that maritime law invests flag states with the principal duty of enforcement. Consensualism requires signatories to a treaty to offer incentives to non-signatory parties to join, while ensuring that the content of the treaty is something these third parties can abide by. Recently, however, an entirely new phenomenon has emerged in the framework to support the international maritime order. I will turn presently to a simple introduction of this phenomenon, while examining the questions at the heart of the approach of securing the ocean.

 In the interests of protection and optimal use of fish stocks, UNCLOS was supplemented with the conclusion of the United Nations Convention on Ocean Fishing Operations. In this convention, signatories agreed that countries participating in high-seas fisheries were bound to take certain measures to protect stocks, based on a preventative approach. At the very least, the existing state of affairs, in which some countries left their own vessels completely unregulated, making the high-seas fisheries a free-of-all, was sharply curtailed. On the enforcement side, flag-state jurisdiction was attenuated, as this principle was one factor in the ineffectiveness of the system of regional fishing treaties. To ensure strict compliance in the fishing grounds, the signatory nations agreed to measures to control their fisheries, including the right to assign inspectors to board and inspect other countries' vessels. Moreover, flag states notified of a breach of the convention are obliged to investigate immediately and to report to the notifying country what measures they have taken. Of course, these procedures for inspecting catch can only be applied among countries that have signed the convention, effectively entrenching flag-state jurisdiction deeper than ever in non-signatory countries. This is consensualism's fatal flaw. Nonetheless, among signatory states, it is now possible to board and inspect other countries' vessels on the high seas. These inspections are to be carried out by the inspecting agencies stipulated by each country, the "treaty agencies," thus enshrining the practice of dedoublement fonctionnel in each country and taking an important step toward "governance without government."

 However, because flag-state jurisdiction is still supported in relations with non-signatory countries, the stronger regulation of high-seas fisheries by regional treaties becomes, the greater the danger becomes that an increasing number of ships will switch registration to countries that have signed neither the United Nations Convention on Ocean Fishing Operations nor a regional treaty. The problem of illegal, unregulated and/or unreported fisheries (IUU fisheries) requires an urgent response. When vessels transfer their nationality to countries that are outside the treaty framework and therefore not bound to its duties, becoming flag-of-convenience vessels, they are effectively unregulated and need not report their activities to anyone. This situation does not serve the needs of ocean governance at all.

 As a result of the catch restrictions provided in the Southern Bluefin Tuna Treaty, Japan's southern bluefin tuna fleet inevitably dwindled, yet some of the ships were sold to Taiwanese and other interests, increasing the size of the Taiwanese fishing fleet in the region. The United Kingdom encountered the same problem when it eliminated much of its fleet of trawlers. Clearly, regulation must extend to the control of flag-of-convenience ships and the transfer of ships' nationality. On this point, a compliance agreement has been concluded at the FAO. While it upholds flag-state jurisdiction in principle, the compliance agreement establishes a framework for heightened effectiveness in preserving and maintaining optimal use of fish stocks.

 Revisions to flag-state jurisdiction are also being considered in the fight to prevent terrorism at sea. The IMO is currently deliberating on a revised version of the Convention for the Suppression of Unlawful Act against Vessels at Sea (known as the SUA Treaty or "anti-seajacking" treaty). In the revised version, the scope of crimes covered by the treaty is broadened to include the transport of items banned in other treaties, such as weapons of mass destruction (WMDs) and biochemical weapons. In enforcement measures on the high seas, the revised treaty empowers signatory countries to order the detention, inspection and search of the vessels of other signatory countries if the vessel's nationality is that of a signatory country or if the vessel is entering international waters from the territorial waters of a signatory country. Similarly, the United States is backing a Proliferation Security Initiative (PSI). This is an effort to reach an agreement in which ships passing through territorial waters can be boarded and searched, even without flag-state agreement, if they are traveling to or from countries in which proliferation of WMDs is a concern. Reservations have been expressed about this proposal in terms of international law and by the international community, not least the UN Security Council, as it is unclear at this point to what degree boarding and inspection of "third-country" (non-signatory) vessels would be permitted without a clear statement of interpretation by coastal states. In any event, this action raises the possibility of policing at the marine transport phase, in this case to prevent the proliferation of WMDs and ensure the security of states that may be targets of terrorist attacks. Given that the original purpose of the SUA Treaty was to ensure the safety of the ships themselves at sea, this proposed revision greatly exceeds the original objectives of the treaty, aiming to suppress the use of ships as weapons in mounting terrorist assaults on land. The emphasis of the treaty would be diverted to the security of land-based populations.

 The principle of flag-state jurisdiction was originally introduced to avoid harm to the interests of international shipping by the intervention of other countries' warships. Although according exclusive authority to the flag state was of course no panacea, the only remaining threat to the national security of coastal states was piracy. With the ongoing development of the seas, expanding international trade, the growing size of ships and deployment of new fishing technologies, the use of the sea has come to have enormous impact on the peace and order of coastal states, exposing glaring weaknesses in flag-state jurisdiction.

 A number of mechanisms have been introduced in a bid to overcome the limitations of flag-state jurisdiction with respect to marine pollution. As the international shipping industry suffers a downturn coupled with intensifying competition, flag-of-convenience vessels are growing increasingly common. It is increasingly urgent that the world community find a workable alternative to flag-state jurisdiction. One important point will be to provide incentives to ship captains, ship-owning companies and shipping companies to prevent pollution. The introduction of the oil record system failed to stem the problem of marine pollution, but the installation of oil treatment facilities in ports and subsidies on processing fees reduced the problem of discharge at sea significantly. Similarly, regulations on defects in ship construction that cause pollution have long been under port-state control, and inspection by port states has gained wider recognition as these states tend to be "vessel-friendly." The expansion of flag-of-convenience registration will raise the pressure to strengthen port-state initiatives to regulate substandard vessels over which flag states fail to exercise control. For port states, the passage of substandard vessels through their territorial waters represents a security problem. As part of this movement to tighten port-state control, UNCLOS has been amended to introduce a system for enforcement by coastal states and port states against acts of pollution that violate international standards as described earlier. Even with these regulations strengthened, however, enforcement incurs considerable cost on port states. These costs should in theory be paid out of registration fees levied on vessels by their countries of registration, but this system was destroyed by the flag-of-convenience problem. One initiative to ensure the security of vessels, enthusiastically embraced by many ship-owners, is to establish and industrial NGO that will inspect and grade vessels on safety, based on criteria set by the IMO. The grading system in question is already used by insurers and could well emerge as an important point of competition in the shipping business. With international organizations, national governments and NGOs working together, a number of effective mechanisms to prevent pollution can be expected to emerge in the near future.

　

 In this discussion I have explored the significance of various attempts to construct new mechanisms in support of the international marine order. From the point of view of ocean governance, these efforts are no more than moves to compensate for the shortcomings of flag-state jurisdiction. It is possible that a major revision of the traditional maritime system would open a Pandora's box, throwing the order of the seas into chaos by fomenting confrontation among coastal states, states that use the oceans and states that are active on the oceans. For example, one recent proposal advocates the establishment of marine protection zones, made up of EEZs and areas of the high seas. Coastal states would have unilateral right to establish such zones, with the right not only to ban fishing and other economic activities in the marine protection zones but to restrict the passage of other countries' vessels as well. It is hard to deny that such a measure is essential for the preservation of natural features that are valued as World Heritage sites, but to states that use the oceans it appears to be just another way for coastal states to fence off the ocean for themselves under a pretty new name, and raises the danger of foreign vessels being ejected from EEZs. Unless such measures are strictly reserved for areas with a fragile environment or other special conditions, and unless the unilateral power of coastal states to declare such reasons is scrapped, the strife this motion brings to the international marine order may well be ferocious. Constructing a marine order which serves the common interests of international society while allaying the sense of insecurity of coastal states is the surest way forward to securing the ocean.