Abstract
For centuries, the maritime order governing the world’s oceans, which cover over 70% of the Earth’s surface, consisted of a dual structure, divided between the narrow band of territorial waters deemed necessary for the security of coastal States and the vast high seas beyond, which all countries were free to navigate and use as they saw fit. The law of the sea, which codified this order, is one of the oldest branches of international law.
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Notes
- 1.
Hanawa (1978).
- 2.
Churchill and Lowe (1999).
- 3.
Ibid., 1999, p. 14.
- 4.
Ibid., p. 79.
- 5.
Sakutaro Yachi (1930).
- 6.
The claim as to the continuous zone first appeared in the Harvard Law School Draft on Territorial Waters. O’Connell (1982).
- 7.
Japan had no objection in principle to participating in the first two conventions, but had to examine carefully the implications of the fourth convention, as its scope contained multiple normative innovations going well beyond the mere codification of existing customary norms. Oda and Owada (1982).
- 8.
Ibid., pp. 136–137.When Mauritania extended its territorial sea to 12 miles from the coast according to its Law No. 67,023 of 21 January 1967, the Government of Japan transmitted its Note Verbale of 24 April 1967, expressing the opposition to the unilateral extension on the part of Mauritania of its territorial waters. Ibid., p. 141.
- 9.
Kuribayashi (2001).
- 10.
UNCLOS came into force for Japan and China on 20 July 1996 and 7 July 1996, respectively.
- 11.
See Harvard Research in International Law, Draft Convention and Comment on Piracy, Comment on Article 3, AJIL, Vol. 26 (Supplement 1932), p. 873.
- 12.
Ibid., Vol. 26, p. 764.
- 13.
Act of 24 June 2009, No. 55; for an English translation, see “Act on Punishment of and Measures against Acts of Piracy”, Japanese Yearbook of International Law, Vol. 53 (2010), p. 838.
- 14.
Committee on Foreign Affairs and Defence on 2 June, 2009 [171st Diet].
- 15.
This case was not published in the District Court Reporter, but there is a case commentary in the High Court Reporter (Kosai Hanrei Shu), Vol. 66(4), p. 6. See also Ishii (2015).
- 16.
Law on the Territorial Sea and the Contiguous Zone (Law N. 30 of 1977, as amended by Law No. 73 of 1996), available at https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/JPN_1996_Law.pdf (last accessed 30 June 2020).
- 17.
It enables Japanese Government to apply its laws and regulations in its contiguous zone.
- 18.
The Law of the Sea Bulletins, Consolidated Table of Contents, No. 33, 1997, p. 38.
- 19.
The Guideline for conducting MSR in areas under national jurisdiction of Japan, The Ministry of Foreign Affairs of Japan, 20 July 1996, paragraphs 1–2.
- 20.
Article 246(5)(a) of UNCLOS.
- 21.
Cf. the unofficial English translation of the Basic Act on Ocean Policy (effective 20 July 2007) https://www8.cao.go.jp/ocean/english/act/pdf/law_e.pdf (last accessed 30 June 2020).
- 22.
The East China Sea is the area from latitude of 33o17’ North to the southern tip of Ryukyu Islands or the northern tip of Taiwan. Its average depth of water is about 50 metres and the continental shelf, which reaches a depth of less than 100 metres, extends eastward almost up to the Okinawa Trough.
- 23.
In fact, the Japanese government expressed regret at the new Chinese gas field, Hakkaku-tei, located in the distant area of the Chinese side of the median line. We can take this Japanese attitude as expressing externally its intention to insist that the area extending up to 200 nautical miles is under dispute. Yumi Nishimura (2006).
- 24.
I.C.J. Reports 2001, p. 93, paragraph 173. In the judgment of the Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen, the ICJ recognised no existence of agreements on the maritime boundary between the parties concerned, and separately examined the effect of Article 6 of the Convention on the Continental Shelf for delimiting boundaries of continental shelves and that of customary international law for fishery zones. Cf. I.C.J. Reports 1993, paragraph 41. Some analyse this judgment and criticise the ICJ for missing an opportunity to pronounce on the process toward adopting a singular boundary for continental shelf and EEZ, even when the parties concerned did not ask it to do so. Cf. M.D. Evans, “Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark vs. Norway),” International and Comparative Law Quarterly, Vol. 43 (1994), p. 702.
- 25.
- 26.
Oda (1979).
- 27.
I.C.J. Reports 1982, Dissenting Opinion of Judge Oda, paragraph 126.
- 28.
Ibid., paragraph 145. Judge Evensen, in his Dissenting Opinion, felt that it was, “hardly conceivable in the present case to draw a different line of delimitation for the exclusive economic zone and for the continental shelf.” Cf. I.C.J. Reports 1982, Dissenting Opinion of Judge Evensen, paragraph 10.
- 29.
However, in his dissenting opinion for the Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (1993), Judge Oda seems to have thought it possible to draw different lines for the EEZ and the continental shelf, meaning that he was in favour of drawing not a singular line, but distinct lines for the EEZ and the continental shelf. Cf. I.C.J. Reports 1993, Dissenting Opinion of Judge Oda, paragraphs 72–74.
- 30.
The ICJ, however, concludes, “this does not mean that the concept of the continental shelf has been absorbed by that of the exclusive economic zone; it does, however, signify that greater importance must be attributed to elements, such as distance from the coast, which are common to both concepts.” I.C.J. Reports 1985, p. 33, paragraph 33.
- 31.
This tendency may also be witnessed in relation to bilateral agreements. For instance, having analysed 136 bilateral maritime boundary delimitation agreements, J.I. Charney concludes that the equidistance principle plays a crucial role in these agreements. Charney and Alexander (1993).
- 32.
I.C.J. Reports 1993, paragraph 59.
- 33.
Available at https://www.mofa.go.jp/files/000091726.pdf (last visited on 30 June 2020).
- 34.
Ibid.
- 35.
In China, the title of this agreement is the [Sino-Japanese] Principled Consensus. Cf. http://www.fmprc.gov.cn/eng/xwfw/s2510/t448632.htm (last accessed 20 August 2008)
- 36.
The content is as follows: “Chinese enterprises welcome the participation of Japanese legal persons in the development of the existing oil and gas field in Chunxiao in accordance with the relevant laws of China governing cooperation with foreign enterprises in the exploration and exploitation of offshore petroleum resources.”
- 37.
Available at https://www.mofa.go.jp/a_o/c_m1/page3e_000356.html (last accessed 25 December 2019).
- 38.
Available at https://www.mofa.go.jp/press/kaiken/kaiken1e_000011.html (last accessed 25 December 2019).
- 39.
In the Matter of an Arbitration Between: Guyana and Suriname, Award of the Arbitral Tribunal, 17 September 2007, p.136, paragraph 477.
- 40.
Application Instituting Proceedings Submitted by the Government of Australia, May 31, 2010, paragraph 2.
- 41.
Ibid., paragraph 4.
- 42.
Every main sentence of the Judgement was decided by a majority of 12 to 4, except for the main sentence 3. Those in favour were President Tomka, Vice-President Sepulvar-Amor, Judges Keith, Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutine, Bhandari, and Judge ad hoc Charlesworth. Those against were Judges Owada, Abraham, Bennouna, and Yusuf. ICJ, Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Merits, Judgment of 31 March 2014, I.C.J. Reports 2014, pp. 298–300, paragraph 247.
- 43.
Ibid., pp. 250–251, paragraph 55.
- 44.
Ibid, p. 250, paragraph 54.
- 45.
Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Counter-Memorial of Japan, p. 324, paragraph 7.8.
- 46.
Judgment, p. 251, paragraph 56.
- 47.
Ibid, p. 252, paragraph 58.
- 48.
Ibid, p. 253, paragraph 61.
- 49.
Ibid, p. 254, paragraph 66.
- 50.
Ibid, p. 255, paragraph 71.
- 51.
Whaling in the Antarctic (Australia v. Japan), Memorial of Australia, Written Proceedings of 9 May 2011, I.C.J. Reports 2011, pp. 155–156, paragraph 4.38.
- 52.
Judgment, p. 258, paragraph 86.
- 53.
Ibid, p. 271, paragraph 144.
- 54.
Ibid, p. 293, paragraph 227.
- 55.
Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting Opinion of Judge Owada, pp. 313–314, paragraph 32.
- 56.
Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Judgment, Dissenting Opinion of Judge Abraham, p. 329, paragraph 32.
- 57.
Supra note 45, p. 320, paragraph 49.
- 58.
International Court of Justice, Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Remarks by the Agent of Japan, Koji Tsuruoka, March 31, 2014.
- 59.
Statement by Chief Cabinet Secretary, December 26 2018, available at https://japan.kantei.go.jp/98_abe/decisions/2018/_00008.html (last accessed 30 June 2020).
- 60.
McDorman (1998).
- 61.
Article 297(3)(a) provides that “Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission of such settlement of any dispute relating to its sovereign rights with respect to the living resources in EEZ or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.”
- 62.
A/RES/69/292, pp. 1–3.
- 63.
UNGA Res 72/249 (24 December 2017) UN Doc A/RES/72/249, paragraph 1.
- 64.
Ricard (2018).
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Sakamoto, S. (2021). Japan and the Law of the Sea: Key Historical and Contemporary Milestones. In: Tamada, D., Zou, K. (eds) Implementation of the United Nations Convention on the Law of the Sea. Kobe University Monograph Series in Social Science Research. Springer, Singapore. https://doi.org/10.1007/978-981-33-6954-2_2
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