Seokwoo Lee and Warwick Gullet (eds.)Asia-Pacific and the Implementation of the Law of the Sea: Regional Legislative and Policy Approaches to the Law of the Sea Convention (Brill Nijhoff, 2015) Hardcover: 230pp.
There is no shortage of books on the law of the sea, an enduring topic of scholarly inquiry in international law. On the occasion of the 20th anniversary of the entry into force of the United Nations Convention on the Law of the Sea (losc) in 2014, presented an opportune time to examine the successes and shortcomings of the “constitution of the oceans” since its adoption in 1982.
In this book, Seokwoo Lee and Warwick Gullett review the legislative and implementation approaches to the losc of nine Asia-Pacific States: China, Japan, Korea, Malaysia, Singapore, Vietnam, Australia, Canada and the United States. Each chapter, written by an expert in the law of the sea from that country, focuses on a single country. The authors make a compelling assessment of the losc implementation, dispute settlement and maritime cooperation practices of the countries examined, with a concise discussion of current issues and future challenges faced by these countries. The chapters in this book provide an insightful, kaleidoscopic spectrum of State practice in respect of the losc, hinting at the genesis of a regional practice which supports a stable albeit disparate implementation of the losc across the Asia-Pacific.
In the opening chapter on China, Zou Keyuan of the University of Central Lancashire, discusses and examines contentious issues faced by China: innocent passage for warships, military activities in the eez, and the controversial “U-shaped line” in the South China Sea. The chapter examines China’s maritime delimitation challenges with its neighbors and clarifies the position of China to delimit its overlapping eez and continental shelf claims in accordance with the equitable principle and on the basis of international law, which is rendered more complicated in the context of China’s territorial disputes over islands, for instance, over the Spratly Islands in the South China Sea and Diaoyu (Senkaku) Islands in the East China Sea. Zou’s honest assessment, that China’s implementation of the losc reveals areas of passivity and inconsistencies in its maritime legislation, is tempered by his optimism that China has generally supported the losc and is prepared to comply with its provisions.
The next chapter, Chie Kojima of Musashino University, examines the losc implementation in Japan. Kojima’s paper begins with an historical overview of the Japanese government’s ocean policies during the incipient stages of the development of the law of the sea and recounts Japan’s active participation and engagement in the un Conferences on the Law of the Sea (unclos) as well as its implementation since Japan ratified the losc in 1996. Then, the paper gives an analysis of Japan’s domestic legislation implementing the losc and their enforcement. The final section of the chapter focuses on Japan’s initiatives to establish regional cooperation frameworks such as the Regional Cooperation Agreement on Combatting Piracy and Armed Robbery against Ships in Asia (ReCAAP); and Japan’s use of international courts and tribunals. Kojima observes that the four cases where Japan appeared before the icj and itlos involved a law of the sea issue.
The losc implementation in Korea, which ratified the losc in 1996, is examined in the third chapter written by Young Kil Park of the Korea Maritime Institute and Seokwoo Lee of Inha University. Park and Lee note that, domestically, the Korean Constitution treats the losc, as a ratified treaty, as having the same effect of domestic laws without need of any further step in terms of legislation. However, the authors acknowledge as unrealistic an examination of Korea’s implementation of all 320 articles of losc, which they admit not every single provision has been incorporated into Korean domestic law. The chapter limited its focus on regulations regarding the various losc maritime jurisdiction zones and concluded with a brief assessment of Korea’s implementation of the losc by identifying several missing legislation which need to be enacted or existing laws which need to be amended in order to fully comply with the losc.
In Chapter 4, Mary George of the University of Malaya, provides a thorough examination of Malaysia’s domestic implementation of the losc interwoven with Malaysia’s participation at unclos, highlighting the country’s particular interests and concerns on issues crucial to Malaysia such as navigation and passage regimes, piracy, fisheries governance and offshore installations. The chapter recognizes Malaysia’s contribution to the peaceful settlement of disputes with its use of the icj and itlos to resolve its maritime disputes with Indonesia and Singapore. The chapter concludes with a thoughtful list of unresolved law of the sea issues for Malaysia.
The port city of Singapore, which signed the losc on the day it opened for signature and ratified it in 1994, is the focus of the next chapter written by Zhen Sun of the Centre of International Law, National University of Singapore. The author, notes at the outset, Singapore’s reputation for its adherence to and observation of international law in its foreign policy. The chapter begins
In Chapter 6, Nguyen Thai Giang of the Diplomatic Academy of Vietnam analyses Vietnam’s legislative implementation of the losc especially in the context of the various maritime jurisdiction zones under the convention, then it discusses Vietnam’s policy in the settlement of maritime disputes and maritime delimitation agreements with Thailand and China. Giang also discusses fishery cooperation and law enforcement policy, Vietnam’s participation in forums and entities in organizations established under losc such as the imo and isa and related agreements, as well as asean agreements related to shipping and maritime services. The chapter concludes that Vietnam has made considerable efforts and expressed its full commitment to fully apply and harmonize its domestic law with losc since it has implemented the landmark treaty.
Warwick Gullett of the School of Law and Australian National Centre for Ocean Resources and Security, University of Wollongong commences his examination of the implementation of the losc in Australia with an observation that the international law of the sea is a priority for Australia given its vast coastline and dependence on the peaceful and lawful order of the sea. Gullett premises Australia’s interest in the law of the sea on its heavy reliance on sea-borne trade as well as its extensive marine resources and sensitive marine environments, which explain Australia’s active contribution in all three unclos culminating in its signature to losc in 1982 and 1994 when it became a party, the year the convention entered into force. The chapter gives a detailed discussion of how Australia has incorporated into its domestic laws the sea rights and obligations in losc, including a discussion of contentious issues involving fisheries such as hot pursuit, automatic forfeiture, and domestic measures which regulate innocent and transit passage in Australia. Gullett finishes his analysis with his observation of Australia’s innovative interpretation of the losc against the backdrop of a number of areas of textual disparity between Australia’s domestic law and the losc across several areas which do not mean Australia is in breach of losc obligations.
In the penultimate chapter, Jeffrey Smith of McGill University emphasises the comparative success of Canada in its implementation of the losc since its accession to the convention. Smith recounts Canada’s participation in the making of the losc and eventual accession and ratification of the losc which provides historical context to the chapter. The chapter observes that the domestic definition of Canada’s maritime zones is consistent with the losc and State practice. The chapter concludes with some prescient identification of future challenges to Canada’s ocean policy and governance, including shipping, pollution and navigation issues in the Arctic and Canada’s role in the making of the imo Polar Code; climate change, maritime security and defence, and even intergovernmental conflicts over maritime jurisdiction ownership and division of revenues from seabed petroleum extraction.
In the final chapter, Anastasia Telesetsky of the College of Law, University of Idaho, in examining the implementation of the losc by the United States, argues that us laws and practices, with the exception of the dispute settlement provisions, are largely in conformity with the obligations of losc. Telesetsky maintains that ratification of the losc by the us is a concrete opportunity for the us to demonstrate its long-term commitment to global cooperation in oceans governance. However, many us stakeholders who further their interests and a policy of American isolationalism halt us ratification. Telesetky proposes that the way around the ongoing political stalemate may be a new government approach to accession. The chapter concludes with the option of the us becoming a full party to the losc through either a Congressional-Executive agreement requiring a simple majority of each Congressional chamber or a sole Executive agreement.
The book has significant strengths. It is clear that the editors as well as authors of the individual chapters in the book have sound and solid understanding of their topics. The principal strength of this manuscript lies in its presentation of domestic legislative and enforcement of losc provisions of key countries in the Asia-Pacific, written by leading legal scholars of international repute. Whilst not exactly novel, the subject matter covered in the book is definitely of importance, timely, interesting, and a valuable addition to existing academic literature. Throughout the work, the authors maintain a balanced outlook and a clear, strictly objective voice that matches their lifetime worth of rigorous research and solid scholarship. The book is a joy to read and does not have the pretentious tones of a tedious text, despite its apparent scholarly nature.
Whilst understandable to an extent, and especially since the book attempts to cover a wide range of countries across the Asia-Pacific, the vast scope of the book did lend itself to the chapters appearing a bit discordant, and noticeably
The market for this book is quite broad, principally university libraries and the academic community, in particular those in the areas of international relations, political science and international law. It may also be useful to policy makers and government departments. Since the book is written in an academic yet accessible language, it is suitable for a wider audience including government officials, officials of global and regional organizations, members of non-government organizations, researchers, the media and the general public. Despite its regional focus, the book’s appeal is actually global rather than being confined to the Asia-Pacific as the issues it covers are of international concern.