The Annual Conference on Oceans Law & Policy began more than four decades ago at the Center for Oceans Law and Policy at the University of Virginia, when Ambassador John Norton Moore and Professor Myron Nordquist identified the need for a regularly occurring and major international meeting to explore developments in the field. The Conference is an expression of current scholarship by leading figures in the field, a gathering of government officials from throughout the world, and an opportunity for participants from academia, industry, civil society, and international and nongovernmental organizations to learn from each other.
With this 44th Annual Conference on Oceans Law and Policy (colp), the event continues under the auspices of the Stockton Center for International Law (scil) of the US Naval War College. Although the Center for Oceans Law and Policy closed in 2020, the Stockton Center for International Law continues a long-standing commitment to the rule of law in the oceans. When the U.S. Naval War College was established in the late-19th century, the first General Order of the school required that there would be two courses of study at the college – strategy and international law. These two are intertwined to maintain peace and security. In 1895, the international law program at the Naval War College began publication of International Law Studies, the oldest journal of international law in the United States. Today the Stockton Center military professors in international maritime law from the U.S. Coast Guard, Navy, U.S. Marine Corps, and hosts numerous visiting scholars and officials to advance our understanding of oceans law and policy, including from the Japan Maritime Self-Defense Force (jmsdf) and the Korea Maritime Institute (kmi). The Stockton Center also is responsible for producing The Commander’s Handbook on the Law of Naval Operations, a restatement of international maritime law, signed by the U.S. Navy, U.S. Coast Guard, and U.S. Marine Corps.
The 44th colp was co-hosted in Tokyo (and virtually) by the Japan Institute of International Affairs (jiia) on 10–12 May 2021, reaching some 1,100 participants. This is the first time colp was conducted in Japan. The Nippon Foundation and World Maritime University (wmu) – Sasakawa Global Ocean Institute generously co-sponsored the conference, which focused on “Peaceful Maritime Engagement in East Asia and the Pacific Region.” This volume is based on presentations made by many experts invited to the Tokyo conference. The sessions featured remarks by distinguished international law scholars and six substantive Parts devoted to identifying and analyzing key issues associated with the conference subject.
The third featured speaker was Michael W. Lodge, the Secretary-General of the International Seabed Authority. He discussed the legal regime of the deep seabed as a paradigm for global governance of natural resources. A former President of itlos, Judge Rüdiger Wolfrum, then makes a comprehensive survey of the international law-making field. He is uniquely qualified to comment on the multifaceted actors in the international normative order and his pointed insights are truly valuable. The comprehensive contribution by Professor Ronán Long and Mariamalia Rodriguez Chaves dealing with the difficulties that must be overcome to attain the conservation and sustainable use of biodiversity beyond national jurisdiction in the Southeast Pacific merit a featured status in this book. Their paper evaluates state practice in the region and concludes that substantial reform is needed in the littoral States’ current legal mandates. The draft bbnj Agreement is postulated as having the potential to herald in a new era of marine biodiversity conservation in areas beyond national jurisdiction for the entire Pacific Basin, thereby providing a remedy for the Southeast region. Professor Atsuko Kanehara concluded with thoughts on our “manifold but common maritime order” as demonstrated at the Tokyo conference. She emphasized the global reach of the common nature of the law of the sea.
Part 1 of the conference, on baselines and archipelagic States, began with Professor Clive Schofield of wmu and David Freestone, professor at George Washington University, and focused on climate change-driven impacts on the ocean. They point to global sea level rise and the major threats to archipelagic atoll coasts and provide scientific projections for damage implications. Henry S. Bensurto. Jr. with extensive personal research experience next wrote a detailed opposition brief on China’s attempt to designate the Spratly Islands with archipelagic legal status. He is very critical of China’s “expansionist” activities in the South China Sea. Next is a paper by Professor James Kraska who
Part 2 deals with navigation rights and law enforcement. Dr. David S. Goddard of the U.K. Foreign Office introduces the topic of the applicability of human rights treaties in maritime law enforcement. He points out that extraterritorial jurisdiction is much more complicated at sea than on land. Professor David Letts then provides a practical guide to navigation and law enforcement from an Australian perspective. He rightly points out that unclos sets out an overarching legal framework but does not answer all the questions that arise with respect to law enforcement at sea. Professor Kyo Arai from Doshisha University in Kyoto next analyzes maritime interception operations (mio) on the high seas against suspected ships sailing under foreign flags as part of the War on Terror. He argues that an expansive interpretation of self-defense is inadvisable to maintain a free and open maritime order. Professor Masahiro Kurosaki of the National Defense Academy of Japan then cautions against escalations into the use of force and armed conflict particularly where the coastal State forcibly evicts foreign flag State vessels from its territory. His presentation also offers an optimal framework for de-escalating a coastal State’s actions.
Part 3 is addressed to Arctic shipping. Professor Aldo Chircop in his usually competent fashion postulates governance considerations for low impact corridors in Canadian Arctic waters. His analysis explores principal governance issues of such corridors against the legal and regulatory backdrop of Canada. An examination of the Northern Sea Route (nsr) in Russia is next given by Professor Kentaro Wani. He concludes that Russian requirements for shipping along the nsr do not comport with unclos but that a tailored interpretation of Article 234 of unclos might be a possible remedy. The role of East Asian port States in addressing ship-source pollution from Arctic shipping is the subject of a paper by Zhen Sun from wmu. She advocates the use of port State extraterritorial jurisdiction enforcement to implement applicable international rules and standards.
Part 4 deals with the complicated subject of East China Sea maritime boundaries. Professor Hironobu Sakai explains the natural prolongation theory for China and for Japan advances the equidistance approach for continental shelf delimitation. He urges both States to “rediscover” an Agreement they signed in 2008 as a starting point for negotiating a broader solution. The submission by Professor Stuart Kaye is among the best of any papers we have ever had over many years of editing this colp series. He confronts the technical issues with
Part 5 takes up preservation of the marine environment with a special focus on the hazard of plastic debris. Professor Tomofumi Kitamura of the University of Tokyo introduces the problem of millions of tons of plastic that leak into the oceans each year. His paper also considers how the basic structure of an instrument tackling marine plastic pollution might be designed. Aleke Stöfen-O’Brien then considers the role of common but differentiated responsibilities as a guiding principle toward a potential international treaty on plastic and marine litter. She sees many options available on the application and operationalization of this principle in such a treaty. Joanna Mossop from the Law Faculty at Victoria University of Wellington cites regional arrangements and the implications of a new treaty for marine biodiversity in the Asia Pacific area. She outlines the position of States in the area and projects their likely reaction.
Part 6 covers issues arising from climate change. Professor Karen Scott from the University of Canterbury in New Zealand reviews the bbnj negotiations. She examines whether current draft arrangements provide an opportunity to connect the law of the sea and climate change. The goal would be to integrate climate concerns into high seas decision-making affecting biodiversity and ecosystems. Professor Naoki Iwatsuki from Rikkyo University in Japan looks at the relation between unclos and climate change law. He notes the compulsory judicial procedures under unlos and suggests that these procedures could work effectively “if collaboration and coordination” are pursued through standard-setting by both systems.
We are pleased to offer this volume as a worthy successor to the process initiated by John Norton Moore and Myron H. Nordquist decades ago. colp and this volume continues to serve as a record of emerging scholarship and thought oceans law and policy. The 45th Annual Conference carries on this tradition in 2022 under the co-sponsorship of the Maritime Institute of Malaysia (mima) in Kuala Lumpur.
Myron H. Nordquist
Distinguished Fellow, Stockton Center for International Law
James Kraska
Charles H. Stockton Professor of International Maritime Law and Chair, Stockton Center for International Law