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SEAPOL international conference: Summary of proceedings of the public symposium (30 April 1987)
SEAPOL International Conference: Summary of Proceedings of the Public Symposium (30 April 1987)
The Deputy Prime Minister of Thailand, H.E. Pong Sarasin, declared the symposium open after briefly outlining the importance of such a gathering of sea law experts to Southeast Asia in general, and to Thailand in particular. He pointed out that countries have shifted their attention away from the issues of negotiation to the issues of treaty ratification and implementation. The Deputy Prime Minister observed that, owing to the transnational nature of ocean-related issues, various unforeseen conflicts and misunderstandings can easily arise, especially between neighbouring countries, due to variable interpretations of parts of the Convention and enforcement issues. He emphasized that it is necessary for countries within the same region and from different regions to work together for a harmonization of policies designed for the wise use of the oceans and the conservation of their limited resources for future generations. The symposium offered an opportunity to facilitate multilateral cooperation, communication and mutual independence in marine affairs. A meeting such as this could perhaps lead to the creation of an institutional basis for legal, political, socioeconomic, environmental and resource-related agreements in ocean affairs, and subsequently bring about the standardization of procedures for forming and implementing joint initiatives, decisions, and, eventually, regional policies. Dr Vitit Muntarbhorn, as master of ceremonies, welcomed the participants to the Symposium on Ocean Development and Management in Southeast Asia. Dr Phiphat, as chairman, made a few general remarks and introduced James Mullin, vice president of IDRC, to the participants. James Mullin recalled his years of association with the SEAPOL project, which had now evolved into a ‘programme’ or ‘process’, stimulating cooperation between people of many different disciplines. He observed that SEAPOL operates in an exceedingly complex arena and seeks to harmonize the perspectives of the academic community and the government sector of the countries in Southeast Asia. Noting that research is a means and not an end in itself, he explained that IDRC is concerned with the ways in which the results of research are utilized. IDRC attempts to connect different disciplines together, so that results will have a multidisciplinary impact. He congratulated SEAPOL on its success in harmonizing the views of the ASEAN countries on the complex political and legal issues associated with implementation of the UNCLOS III Convention. SEAPOL has created a forum where
MARINE
POLICY January 1988
academics and government officials can meet together to discuss these difficult and important issues. To bring about a balance of competing interests within a government and to harmonize the divergent interests of each of the ASEAN countries is no small accomplishment. The chairman thanked James Mullin for his encouraging words. Dr Phiphat reiterated the need to protect the sea and its resources, not just for national or regional interests, but for all mankind. He cited some of the high-level dignitaries who had participated in SEAPOL activities and, on this occasion, welcomed Dr Satya Nandan, Director of the UN Office of the Special Representative of the Secretary-General for the Law of the Sea.
Keynote speech: UN Convention global and regiona1prospect.s
on the Law
ofthe
Sea:
Satya Nandan expressed his interest in the accomplishments of SEAPOL and outlined how this regional project fits into the historical context of the new legal order for the sea which has been evolving on a global basis since the end of the second world war. The new order is essentially a delicate balance between national and international interests. Many of the issues, such as boundary making, innocent passage, and economic-zone rights, are of a highly political, as well as legal, nature. Flexibility and a broad perspective are required to solve problems in a tolerant and patient manner. The Convention seems to have had a stabilizing effect in terms of the number of states which have declared a 12-mile territorial sea and a 200-mile exclusive zone. National legislation is gradually being brought into conformity with the guidelines presented in the Convention. As we approach the 21st century, increased attention will be paid to the sea owing to pressures of population growth and the need for additional food, raw materials and commercial opportunities. Linked with the privilege of exploiting the living and non-living resources of the sea is the obligation and responsibility of all states to use and manage these resources wisely. Now a framework has at last been established. Now there are standards to be followed as guidelines. This is a far superior situation to the somewhat nebulous notion of ‘customary international law’. None the less, since it is a result of compromise, it is prone to variable interpretations. Overlapping claims need to be resolved in an atmosphere ofgoodwill. Cooperation must be stimulated on bilateral, regional and subregional
61
levels to ensure the successful implementation of management policies for the protection and preservation of the marine environment; marine science research; and fishery development. During this transitional phase, cooperation on many levels is the key to peace and security. The Convention is one of the most significant conflictprevention measures of the 2Ist century.
Fishery resource
devcloptnent
tially elaborated on the fishery provisions of the Convention, the emphasis had shifted to management issues, such as the need to reduce the effects of sophisticated technology which, in the long run, could deplete stocks. Another occurrence has been the establishment of several joint ventures negotiated by governments. Many examples are well known in the ASEAN region. All in all. Professor Edeson concluded, the Convention seemed to be working well.
utld tmrnagetmwt
Dr Purwito Martosubroto (Indonesia) presented the issue of fishery resource development and management from the point of view of the ASEAN countries. He noted that fishery resources in the region are variable, but at present provide an annual production of 5.6 million tons. Fishing is a Iabour-intensive activity: in Southeast Asia some 2.1 million people are engaged in small-scale fisheries alone. Owing to crowded coastal waters, social unrest may result. Due to this pressure, stock assessment is of the utmost importance. Catch data from fishermen is usually essential in maintaining an effective licensing system. UNDP has agreed to fund a project to monitor and control licensed fisheries and to assist with the surveillance of fisheries in the region. As for regional cooperation, many institutions arc seeking to improve existing cooperative arrangements. The 1984 FAO World Fisheries Conference was a milestone which set out the guidelines for specific action plans to develop and manage fisheries wisely. This was followed in February and October 1985 by two SEAFDEC/FAO meetings, the first on shared stocks and the second on fisheries development, planning and management. As recently as February 1987, the Indo-Pacific Fisheries Commission held a meeting in Darwin, Australia to discuss these problems. Last, but not least, the ASEAN Fisheries Development Centre will be established soon to cope with fishery problems in the region. Dr Purwito concluded his remarks with the hope that there would be cooperation between SEAPOL and the ASEAN Fisheries Development Centre. Professor William Edeson (Australia) highlighted some of the global aspects of fishery resource development and management. He recalled that the new law of the sea requires a delicate balance to be maintained between international and national interests. Flexibility and conpromise at the domestic level have been called for - even prior to the adoption of the 1982 Convention. As for regional and subregional cooperation, Professor Edeson cited recent efforts in the South Pacific, Western Africa and the Caribbean to harmonize conservation measures, develop common management policies, and tackle enforcement problems. As to boundary treaties, Professor Edeson indicated how separate functional zones had been established by several treaties -between Argentina and Chile, Colombia and Haiti, Iceland and Norway, and Australia and Papua New Guinea. Following the code and framework formulated during the 1984 FAO World Fisheries Conference, which essen-
Transit
Heliliah Yusof (Malaysia) focused on Part III of the Convention dealing with transit and its effect on Malaysia. She observed that Part III was an example of the effort at UNCLOS III to reconcile and balance competing interests. However, she warned against the possible implications for coastal states dealing with states which are not parties to the Convention, especially in the application of Articles 42 and 233. Regulations would have to be established in respect of fishing activities, loading and unloading commodities, etc. Regional cooperation would improve safety of navigation, through such measures as traffic separation schemes and oil-spill contingency plans. Yet in view of the uncertain relationship between the 1982 Convention and the 1958 Convention on the Territorial Sea and Contiguous Zone, how binding was Article 233 of the former? Malaysia, she said, is examining the provisions on traffic separation schemes and reviewing alternative enforcement measures that might be taken against states which are not parties to the Convention. Professor J.P. Queneudec (France) observed that the right of innocent passage through territorial seas is recognized by both customary and conventional international law. The traditional right was codified in the 1958 Convention on the Territorial Sea and Contiguous Zone, and consolidated and strengthened by the 19X2 Convention. As a ‘package deal’, the 1982 Convention contributed a better and clearer definition of ‘passage’ and the conditions under which passage may be considered ‘innocent’. Strict rights and duties of both the coastal state and flag state are enunciated. In addition, a coastal state is obliged to adopt laws relating to innocent passage through its territorial waters. As examples he cited legal provisions formulated by France and the USSR. In conclusion, Professor Queneudec noted that there appears to be a tendency for states to develop supportive legislation and administrative procedures prior to the ratification of the Convention.
Protection
of the marine environment
Professor Douglas M. Johnston (SEAPOL) suggested several possible reasons why the world community has sought to improve and protect the environment in the ways it has over the last four decades - namely, fear, economic gain, visibility, and sentiment. Two types of marine pollution were of special importance - land-based and vessel source. As regards the first, Professor Johnston
MARINE
POLICY January
1988
suggested that the Montreal Guidrlinrs might be adopted in the region, or adapted to special problems such as those in the Gulf of Thailand. Concerning the second, the congested waters of Southeast Asia are becoming more visibly polluted, raising the level of concern about the eventual hazards that may arise if appropriate measures are not implemented fairly soon. The same is true in the case of the dumping of noxious substances in the waters of Southeast Asia. However, in view of an apparent distaste in the region for legal instruments, Professor Johnston wondered how this may adversely affect the treatlnent of pollution problems in Southeast Asia. Dr Gomez (the Philippines) reported that he had just attended the UNEP-COPSEA Conference which was held at the same time as the SEAPOL workshop. He read paragraph 52 of the final report, adopted on 29 April 1987, which suggested the participants did not feel a need for legal instruments to combat marine pollution in the East Asia Sea area at the present time. However, UNEP offered to consider the matter in due course at a subsequent meeting. Dr Gomez commented that such an outcome probably resulted from the fact that most of the participants perceived the ocean as a dividing line between countries or as a means of navigation for commerce. The perspective of a marine scientist is very different. and yet man’s awareness and understanding of the ocean is still fragmentary. Thus, there is often a gap between the legal experts and the environmentalists, between the policy makers and the academics. Dr Gomez called for a better linkage between the two groups. Such contact would lead to better understanding of the marine environment, which both groups are committed to protect. Dr Gomez noted the existence of serious information gaps, perhaps stemming from a lack of dedication to work wholeheartedly for the protection of the marine environment. As an example, it was pointed out that since the East Asian Seas Action Plan was begun in 1982, financial input has decreased. Implementation of the environmental provisions of the Convention will be difficult, not least in the area of conservation of endangered species such as whales. Measures need to be taken on a national basis first, and subsequently on a regional level. Boihndary
making
Professor Rainer Lagoni (FR Germany) began his discussion of boundary making by emphasizing the importance of well-defined areas for effective resource management. Fishermen and mining companies need clearly defined boundary lines to ensure peace and security at sea. Owing to the lack of delineated baselines in many areas of Southeast Asia, disputes and conflicts may arise. He questioned whether it was desirable that a coastal state should review all its existing baselines, closing lines and seaward limits to ascertain if they are in conformity with the 1982 Convention. For practical considerations, he felt that this was not possible, although some other workshop participants had argued in favour of a general review. This leads to the question how strict or flexible a coastal
MARINE
POLICY January 1988
state should be in the interpretation of the Convention, when it draws up its baselines, closing lines and seaward limits. It seems that in baseline delineation, the coastal state has some freedom in the choice of methods to be applied. Moreover, no party to an existing bilateral boundary agreement has the right to demand revision. Improved charts and lists of coordinates can be produced by undertaking a technical review of lines. In the event of an unresolved dispute, then the line should be drawn in conformity with the 1982 Convention. In Southeast Asia, EEZ boundaries will affect the fisheries of ASEAN and non-ASEAN countries. Preliminary ~lrrangements are being made, and temporary regimes in disputed areas are being adopted. Neighbouring states are obliged to inform each other of boundaries and to negotiate with each other if legal problems arise. Several workshop participants had opposed the idea that existing continental shelf boundary agreements should be reevaluated in light of the EEZ. There are both legal and practical reasons why the existing agreements should not be tampered with. To do so might invite conflict. Yet there is the question whether an existing continental-shelf agreement can serve as the basis for a single maritime boundary. In the case of the Gulf of Maine, for instance, the suitability of the single maritime boundary between Canada and the USA may be questioned. Special agreements may have to be reached concerning access to certain fishery stocks. In conclusion, Professor Lagoni urged that if delimitation agreements are lacking, they should be negotiated. To ensure that a sufficient cadre of well-informed personnel are available to draw up boundary lines, training opportunities should be offered to officials who will be engaged in this type of activity.
Professor Edgar Gold (Canada) pointed out that nearly IO different international agencies were concerned with one or another aspect of the law of the sea. He recalled that the policies of these agencies are determined by the member states themselves. By and large, most secretariats can be tapped as an underutilized resource. Being relntively unbiased, the secretariats of international agencies can play a significant role in evaluating the legal, social and economic aspects of the law of the sea issues. He then summarized a few of the activities undertaken by some of the agencies. Group one consists of agencies whose specific and implied tasks are relevant to the implementation process, namely. IMO. UNEP, FAO, IOC, ICAO. INEA. ITL and IHO. Group two consists of global agencies with related mandates, such as ILO, WHO, WMO, ITC, UNIDO. UNCTAD, lCJ, UNU, IMF, UNDP and the World Maritime LJniversity in Sweden, which has a two-year training course for officials from developing countries. The third group includes regional and nongovernmental organizations such as ASEAN, the South Pacific Forum, ESCAP. the Commonwealth Secretariat in London, the Seabed Authority in Jamaica, the Interna-
63
tional Tribunal in Hamburg, the Office for Ocean Affairs and the Law of the Sea, and the ~ontiI~enta1 Shelf Commission, inter aliiz. All of these agencies are undertaking law of the sea activities to a greater or lesser degree owing to the ‘new regime’ of the oceans.
General discussion Shao Jin (PRC) expressed concern over current confusion among international lawyers regarding the applicability of the right of innocent passage to warships in transit through territorial waters. Because of the lack of any provision in the 1982 Convention, it was necessary to deal with this issue by recourse to customary international law. According to the ‘package-deal’ theory of UNCLOS III, there must be a balance between the rights of coastal states and those of the maritime powers. It would be useful to secure agreement on the conditions prerequisite to the right of passage for warships through territorial waters of coastal states. Because of the 1982 Convention some changes in state practice are to be noted, such as the legislation of the USSR and France. Satya Nandan (United Nations) explained the role the office of the Secretary-General of the United Nations has played and will continue to play in ocean affairs and the law of the sea. States are presenting reports to his office on an annual basis. Dr Hasjim Djalal (Indonesia) voiced his disappointment at the final outcome on several issues negotiated at UNCLOS III. When no comment was offered against certain concepts, tacit agreement was assumed. Yet when the moment came for the countries to sign the Convention, quite a few countries withheld their signature. Particularly unsatisfactory in his opinion was the matter of passage. Article 42 is rather restrictive for coastal states, because they are obliged to control pollution. The rules of navigation are considered a victory for the maritime powers, but many of them have not signed the Convention, despite the compromises accepted by the nonmaritime countries. Dr Visoot (Thailand) pointed out that coastal states exercising any right accorded to them under the Convention must comply with the conditions attached to that right. This has particular relevance to the fishery rights of coastal states within the EEZ. Dr Visoot emphasized the need for certain privileges to be granted to countries which have traditionally fished in specific areas and are now to be displaced under the new law of the sea. Reference was made to the arrangement between Iceland and the t.JK.
National statements The P~~ili~~p~n~s Minister Jose D. Ingles noted that the Philippines was one of the original signatories of the UN Convention in 1982, and had ratified it in 1984. He also noted that representatives of his government have played an active role in the PrepCom discussions in Jamaica and that one of them had
been elected vice chairman of the special coInmission preparing for the estabIishment of the Intern~~ti~)n~ll Tribunal of the Law of the Sea. He commented that the Convention offers an opportunity for all states, especially the developing nations, to share the resources of sea areas not previously available to them. However, Minister Ingles enumerated some problem areas where his government had reservations about the compromises drawn up at UNCLOS III: namely (a) the implications for archipelagic states of Article 53 of the Convention, which allows for sealanes passage for all types of vessels (right of navigation and overflight) through and over the internal waters of archipelagic states; (b) the risk of maine polluti~~n to the marine environment; and (c) the Philippines’ reiteration of its claim to territorial limits, established in 189X. Minister Ingles then touched on the Philippines’ coordinated system of identification, inventory and assessment of marine resources such as fisheries (allowable catch in the EEZ), energy (petroleum, coal, geothermal and nuclear substances), and hard minerals. He next covered the matter of the continental shelf (seabed and subsoil) as determined by the Philippines, and recalled that his government had proclaimed its 200-mile exclusive economic zone in 1978, prior to the signing of the Convention. With its 652 000 square nautical miles, the Philippines had a great opportunity to develop its fishing industry further. As to regional cooperation for protection and preservation of marine resources, Minister Ingles pointed out that the oceans should not become a source of tension and conflict among nations, but must be developed harmoniously in a climate of mutual respect. It was significant that the Convention emphasized the obligation of all states to preserve and utilize the resources of the sea, so that all nations can benefit from this wealth, not least in areas which belong to the common heritage of mankind. With this in mind, the Convention requires states to cooperate on a global and regional level in formLIlating rules and standards to protect and conserve the marine environmerIt (including contingency plans for pollution, enc~)ur~~~ing research, and exchanging information on pollution of the marine environment). Minister Ingles referred to the rights of land-based mineral producer states which may be adversely affected by the production of minerals from the deep-ocean floor. He appealed to the International Seabed Authority for a conciliatory approach to this problem. He ended his remarks by touching on the problem of delimitation of maritime areas owing to overlapping exclusive economic zones and continental shelves among some of the states in Southeast Asia. Special reference was made to the Paracels and Spratleys Islands. Difficulties might be resolved by reference to the International Court of Justice in order to achieve an equitable solution. He stated that his government is willing to conclude agreements with other states, especially those of ASEAN, to settle any conflicting claims over maritime areas in order to maintain harmonious and amicable relations in the region.
MARINE
POLICY January
1988
Indonesia Dr Hasjim Djalal (Indonesia) made a few personal remarks concerning the prospects of implementing the Convention. He said that it would be wiser to ratify the Convention first, prior to adjusting national legislation. ‘Ratify first, adjust later’, was his slogan. Ratification will help bring the Convention into force, and reduce the need to rely on nebulous ‘customary international law’. International organizations should assist in the tasks of implementation in the manner contemplated by the Convention. He then proceecled to respond in detail to the recommendation contained in the Discussion Paper. Some of his points are summarized below. All states in Southeast Asia should participate in international research and training activities in various sectors of ocean development and management, bearing in mind financial considerations and the availability of training programmes. In new areas of national jurisdiction such as the exclusive economic zone, coastal states in the region should consult with neighbouring states, other interested states, and national, regional and international organizations to implement Parts IV, V and VI of the Convention. Dr Djalal observed that coastal states are required to take initiatives to harmonize their national policies and measures with their neighbours, either bilaterally or through appropriate regional organizations. As for entering into arrangements with neighbours, coastal states are obligated to do this only in areas specified by the Convention, and not in all respects, because of existing legitimate interests. On transit issues in straits areas, much of the responsibility is placed on coastal states, rather than straits states, as was the original intention. In the Straits of Malacca and Singapore, safety has been improved considerably, as well as navigational aids, charts and revolving funds to pay for potential pollution disasters. On environmental protection and fishery conservation, the Southeast Asian states should attempt to implement the Regional Action Plan for the Protection and Preservation of the Marine Environment, especially as regards pollution from shipping activities. There should be more effective regional cooperation in environmental planning and management. Coastal states should, on the other hand, establish environmental and safety standards in exploiting their offshore hydrocarbon resources. As for boundary-making, all states should review their presently established baselines and jurisdictional claims and examine delimitation issues with a view to bilateral or trilateral involvement, rather than on a regional basis which might be construed as interference with sovereign rights. If government officials are to be trained in the techniques of ocean boundary-making, their training will have to be financially supported in some way. The UNCLOS III disputes system provides for a variety of methods, including arbitration and conciliation, but the ASEAN countries are committed to a policy of regional cooperation. The establishment of a consultative mechanism under the auspices of ASEAN is good in theory, but
MARINE
POLICY January
1988
may be difficult to put into practice because of financial constraints. ASEAN is committed to cooperation in marine scientific research. ESCAP should promote consultation on ocean law in the Asia-Pacific region. ASEAN should support the UNEP Regional Action Plan for Southeast Asia for the protection and preservation of the marine environment. FAO, and especially IPFC, should play a greater role in law of the sea matters. In conclusion, Dr Djalal observed that the Convention was good but a ‘national policy’ is better. A ‘regional policy’ is good and an ‘international policy’ is generally good. In implementing the Convention, he cautioned, it is better not to amend it, because this may upset the existing balance. Singapore Chao Hick Tin summarized what he considered were the prospects for implementation of the I982 LOS Convention from the Singapore point of view. The Convention was ;I comprehensive legal framework, which could be regarded as heralding a ‘new era in international cooperation’. Despite the fact that Singapore played an active role in UNCLOS III, he cited some of the reservations his government has about the concepts of a I?-mile territorial sea and a XX-mile exclusive economic zone, which i)r considered neither territorial sea nor high seas. Singapore’s relevant departments and agencies are evaluating the merits of ratifying the Convention. Singapore’s navigational interest in the sea appears to be reasonably safeguarded in the 1982 Convention, but the same cannot be said for its fishing interest. despite the fact that its fishery development requirements arc not extensive at the present time. For Singapore. he said, implcmentation means keeping up to date with the laws enacted and measures undertaken by neighbouring countries. Therefore, he urged that there be an exchange of information on these issues among the ASEAN countries. For example, the designation of sealanes and the prescription of traffic separation schemes for safe passage through straits used for international navigation is of primary interest to Singapore. He noted that a coastal state bordering a strait is required to refer any proposal to IMO before implementation. However, if a vessel from 21transit state does not observe the regulations. enforcement measures may have to be taken, and this may cause difficulties in the future. Another problem cited was that of boundary delimitation between opposite or adjacent states. Several issues of this kind in the region have not been resolved. as far as Singapore is concerned. Finally, the problems of pollution control and preservation of the marine environment are issues on which the ASEAN confederation has taken some initiatives, such as those measures outlined in the UNEP Regional Action Plan. Mr Chao ended his address by calling for effective cooperation among the countries of Southeast Asia. particularly the ASEAN countries, to bring about the full implementation of the Convention.
65
Italimah Ismail presented her view of Malaysia’s attempts to implement the Convention in the context of boundary making, transit, protection of the marine environment, fishery development and management, and settlement of disputes, il~tcr a/k. She reiterated the view that the Convention is a ‘package’ which needs to be accepted ire /oto. and that the above-mentioned issues arc of equal importance and merit equal emphasis. Each of these issues must be seen within the overall framew~ork of the Convention which is an intricately balanced text. provicling the basis for universality and h~~rrnoniz~~ti(~n. She observed that the states of Southeast Asia are at varying stages in the impleme~~tatio~~ of the Conventi(~n during this transitional phase. It was emphasized that the Convention will be effective if states can coordinate their activities, compare their experiences, and make the new legal regime an incentive for new forms of international cooperation, without prejudging their position his-d-vis other states. States in the Southeast Asian region are in the process of reviewing their existing national legislations with the aim of bringing them in line with the provisions of the Convention. As for Malaysia in particular, the government is carrying out this exercise and simultaneously studying the provisions of the ~onvcntion to determine whether new laws are required, Malaysia is also considering the extent and implications of interde~lrtnlent~ll coordination to execute the duties and obligations arising from new offshore benefits. She added that the South China Sea has been identified as an area which, because of competing claims, has made limited progress in exploiting offshore resources and formulating comprehensive national rules and regulations. However, the states involved have initiated negotiations, some bilateral delimitation agreements have been signed. and other provisional arrangements have been made. One concern is the status of states not signatories to the Convention, raising concern whether this situation might undermine the effectiveness of the Convention. In particular, the issue could arise in the Straits of Malacca and Singapore if the governments of the area are faced with the problem of enforcement to ensure safety of navigation and protection of the marine environment. MS Halimah concluded that there is still much to be done by states during the transitional phase subsequent to their signing of the Convention, but prior to ratification.
Thailand Dr Arun Pandpong, adviser to the Prime Minister of Thailand, presented the concluding remarks of the Symposium from a global perspective. Dr Arun pointed out that all the ASEAN countries had actively participated in the long years of deliberations at
66
UNCLOS III. The ASEAN countries have all signed the Conventi~~n, and two countries have ratified it. The Convention is in the course of being evaluated by other ASEAN countries. Southeast Asia is aware of the significant impact of the new regime of the sea which has evolved in recent years. Several reasons were given for this - the diversity of characteristics of the countries in the region (coastal, geographically disadvantaged, archipelagic, Iandlocked and island); the abundance of living and non-living resources in the region; the strategic position between the Indian and Pacific Oceans; and the existence of many areas of conflicting claims by coastal states over the limits of territorial seas, coIltinenta1 shelves and exclusive economic zones. Dr Arun observed that all countries are in a state of transition with respect to the new law of the sea. Despite the initial support for the Convention, he noted that both positive and negative views persist during this uncertain phase prior to the full ratification of the Convention. One positive result of UNCLOS III is that several concepts have already achieved the status of ‘customary international law’ and preparatory activities for the future are well underway: such as the Preparatory Commission for the International Seabed Authority (PrepCorn), and for the International Tribunal of the Law of the Sea. It should be recalled that the law of treaties imposes an obligation on a state which has signed the treaty subject to ratification not to frustrate the object of the treaty prior to its entry into force. Dr Arun concluded his remarks by mentioning some of the following approaches which, from the point of view of Thailand, may contribute to the establishment of workable ways for implementing the Convention, while awaiting its entry into force. Efforts should be made by all states, supported by regional and international organizations, to harmonize their municipal laws and regulations in conformity with the provisions of the Convention. States of the same region should initiate the negoti~lti~~ll of bilateral or regional agreements on various issues, using the provisions of the Convention as a model or framework. A treaty originally concluded between a limited number of parties may be generalized by subsequent independent acceptance or imitation. With regard to the regimes of exclusive economic zone and archipelagic states, the need for a pragmatic and equitable reconciliation of interests should be borne in mind, as well as the fact that privileges imply responsibilities. With these concluding suggestioI~s, Dr Arun called for all states to work together towards the firm est~tblisllm~nt of a legal order for the seas which will serve not only vested national interests but also the common interests of the world community.
MARINE
POLICY January 1988
The Deputy Prime Minister of Thailand, H.E. Pong Sarasin, declared the symposium open after briefly outlining the importance of such a gathering of sea law experts to Southeast Asia in general, and to Thailand in particular. He pointed out that countries have shifted their attention away from the issues of negotiation to the issues of treaty ratification and implementation. The Deputy Prime Minister observed that, owing to the transnational nature of ocean-related issues, various unforeseen conflicts and misunderstandings can easily arise, especially between neighbouring countries, due to variable interpretations of parts of the Convention and enforcement issues. He emphasized that it is necessary for countries within the same region and from different regions to work together for a harmonization of policies designed for the wise use of the oceans and the conservation of their limited resources for future generations. The symposium offered an opportunity to facilitate multilateral cooperation, communication and mutual independence in marine affairs. A meeting such as this could perhaps lead to the creation of an institutional basis for legal, political, socioeconomic, environmental and resource-related agreements in ocean affairs, and subsequently bring about the standardization of procedures for forming and implementing joint initiatives, decisions, and, eventually, regional policies. Dr Vitit Muntarbhorn, as master of ceremonies, welcomed the participants to the Symposium on Ocean Development and Management in Southeast Asia. Dr Phiphat, as chairman, made a few general remarks and introduced James Mullin, vice president of IDRC, to the participants. James Mullin recalled his years of association with the SEAPOL project, which had now evolved into a ‘programme’ or ‘process’, stimulating cooperation between people of many different disciplines. He observed that SEAPOL operates in an exceedingly complex arena and seeks to harmonize the perspectives of the academic community and the government sector of the countries in Southeast Asia. Noting that research is a means and not an end in itself, he explained that IDRC is concerned with the ways in which the results of research are utilized. IDRC attempts to connect different disciplines together, so that results will have a multidisciplinary impact. He congratulated SEAPOL on its success in harmonizing the views of the ASEAN countries on the complex political and legal issues associated with implementation of the UNCLOS III Convention. SEAPOL has created a forum where
MARINE
POLICY January 1988
academics and government officials can meet together to discuss these difficult and important issues. To bring about a balance of competing interests within a government and to harmonize the divergent interests of each of the ASEAN countries is no small accomplishment. The chairman thanked James Mullin for his encouraging words. Dr Phiphat reiterated the need to protect the sea and its resources, not just for national or regional interests, but for all mankind. He cited some of the high-level dignitaries who had participated in SEAPOL activities and, on this occasion, welcomed Dr Satya Nandan, Director of the UN Office of the Special Representative of the Secretary-General for the Law of the Sea.
Keynote speech: UN Convention global and regiona1prospect.s
on the Law
ofthe
Sea:
Satya Nandan expressed his interest in the accomplishments of SEAPOL and outlined how this regional project fits into the historical context of the new legal order for the sea which has been evolving on a global basis since the end of the second world war. The new order is essentially a delicate balance between national and international interests. Many of the issues, such as boundary making, innocent passage, and economic-zone rights, are of a highly political, as well as legal, nature. Flexibility and a broad perspective are required to solve problems in a tolerant and patient manner. The Convention seems to have had a stabilizing effect in terms of the number of states which have declared a 12-mile territorial sea and a 200-mile exclusive zone. National legislation is gradually being brought into conformity with the guidelines presented in the Convention. As we approach the 21st century, increased attention will be paid to the sea owing to pressures of population growth and the need for additional food, raw materials and commercial opportunities. Linked with the privilege of exploiting the living and non-living resources of the sea is the obligation and responsibility of all states to use and manage these resources wisely. Now a framework has at last been established. Now there are standards to be followed as guidelines. This is a far superior situation to the somewhat nebulous notion of ‘customary international law’. None the less, since it is a result of compromise, it is prone to variable interpretations. Overlapping claims need to be resolved in an atmosphere ofgoodwill. Cooperation must be stimulated on bilateral, regional and subregional
61
levels to ensure the successful implementation of management policies for the protection and preservation of the marine environment; marine science research; and fishery development. During this transitional phase, cooperation on many levels is the key to peace and security. The Convention is one of the most significant conflictprevention measures of the 2Ist century.
Fishery resource
devcloptnent
tially elaborated on the fishery provisions of the Convention, the emphasis had shifted to management issues, such as the need to reduce the effects of sophisticated technology which, in the long run, could deplete stocks. Another occurrence has been the establishment of several joint ventures negotiated by governments. Many examples are well known in the ASEAN region. All in all. Professor Edeson concluded, the Convention seemed to be working well.
utld tmrnagetmwt
Dr Purwito Martosubroto (Indonesia) presented the issue of fishery resource development and management from the point of view of the ASEAN countries. He noted that fishery resources in the region are variable, but at present provide an annual production of 5.6 million tons. Fishing is a Iabour-intensive activity: in Southeast Asia some 2.1 million people are engaged in small-scale fisheries alone. Owing to crowded coastal waters, social unrest may result. Due to this pressure, stock assessment is of the utmost importance. Catch data from fishermen is usually essential in maintaining an effective licensing system. UNDP has agreed to fund a project to monitor and control licensed fisheries and to assist with the surveillance of fisheries in the region. As for regional cooperation, many institutions arc seeking to improve existing cooperative arrangements. The 1984 FAO World Fisheries Conference was a milestone which set out the guidelines for specific action plans to develop and manage fisheries wisely. This was followed in February and October 1985 by two SEAFDEC/FAO meetings, the first on shared stocks and the second on fisheries development, planning and management. As recently as February 1987, the Indo-Pacific Fisheries Commission held a meeting in Darwin, Australia to discuss these problems. Last, but not least, the ASEAN Fisheries Development Centre will be established soon to cope with fishery problems in the region. Dr Purwito concluded his remarks with the hope that there would be cooperation between SEAPOL and the ASEAN Fisheries Development Centre. Professor William Edeson (Australia) highlighted some of the global aspects of fishery resource development and management. He recalled that the new law of the sea requires a delicate balance to be maintained between international and national interests. Flexibility and conpromise at the domestic level have been called for - even prior to the adoption of the 1982 Convention. As for regional and subregional cooperation, Professor Edeson cited recent efforts in the South Pacific, Western Africa and the Caribbean to harmonize conservation measures, develop common management policies, and tackle enforcement problems. As to boundary treaties, Professor Edeson indicated how separate functional zones had been established by several treaties -between Argentina and Chile, Colombia and Haiti, Iceland and Norway, and Australia and Papua New Guinea. Following the code and framework formulated during the 1984 FAO World Fisheries Conference, which essen-
Transit
Heliliah Yusof (Malaysia) focused on Part III of the Convention dealing with transit and its effect on Malaysia. She observed that Part III was an example of the effort at UNCLOS III to reconcile and balance competing interests. However, she warned against the possible implications for coastal states dealing with states which are not parties to the Convention, especially in the application of Articles 42 and 233. Regulations would have to be established in respect of fishing activities, loading and unloading commodities, etc. Regional cooperation would improve safety of navigation, through such measures as traffic separation schemes and oil-spill contingency plans. Yet in view of the uncertain relationship between the 1982 Convention and the 1958 Convention on the Territorial Sea and Contiguous Zone, how binding was Article 233 of the former? Malaysia, she said, is examining the provisions on traffic separation schemes and reviewing alternative enforcement measures that might be taken against states which are not parties to the Convention. Professor J.P. Queneudec (France) observed that the right of innocent passage through territorial seas is recognized by both customary and conventional international law. The traditional right was codified in the 1958 Convention on the Territorial Sea and Contiguous Zone, and consolidated and strengthened by the 19X2 Convention. As a ‘package deal’, the 1982 Convention contributed a better and clearer definition of ‘passage’ and the conditions under which passage may be considered ‘innocent’. Strict rights and duties of both the coastal state and flag state are enunciated. In addition, a coastal state is obliged to adopt laws relating to innocent passage through its territorial waters. As examples he cited legal provisions formulated by France and the USSR. In conclusion, Professor Queneudec noted that there appears to be a tendency for states to develop supportive legislation and administrative procedures prior to the ratification of the Convention.
Protection
of the marine environment
Professor Douglas M. Johnston (SEAPOL) suggested several possible reasons why the world community has sought to improve and protect the environment in the ways it has over the last four decades - namely, fear, economic gain, visibility, and sentiment. Two types of marine pollution were of special importance - land-based and vessel source. As regards the first, Professor Johnston
MARINE
POLICY January
1988
suggested that the Montreal Guidrlinrs might be adopted in the region, or adapted to special problems such as those in the Gulf of Thailand. Concerning the second, the congested waters of Southeast Asia are becoming more visibly polluted, raising the level of concern about the eventual hazards that may arise if appropriate measures are not implemented fairly soon. The same is true in the case of the dumping of noxious substances in the waters of Southeast Asia. However, in view of an apparent distaste in the region for legal instruments, Professor Johnston wondered how this may adversely affect the treatlnent of pollution problems in Southeast Asia. Dr Gomez (the Philippines) reported that he had just attended the UNEP-COPSEA Conference which was held at the same time as the SEAPOL workshop. He read paragraph 52 of the final report, adopted on 29 April 1987, which suggested the participants did not feel a need for legal instruments to combat marine pollution in the East Asia Sea area at the present time. However, UNEP offered to consider the matter in due course at a subsequent meeting. Dr Gomez commented that such an outcome probably resulted from the fact that most of the participants perceived the ocean as a dividing line between countries or as a means of navigation for commerce. The perspective of a marine scientist is very different. and yet man’s awareness and understanding of the ocean is still fragmentary. Thus, there is often a gap between the legal experts and the environmentalists, between the policy makers and the academics. Dr Gomez called for a better linkage between the two groups. Such contact would lead to better understanding of the marine environment, which both groups are committed to protect. Dr Gomez noted the existence of serious information gaps, perhaps stemming from a lack of dedication to work wholeheartedly for the protection of the marine environment. As an example, it was pointed out that since the East Asian Seas Action Plan was begun in 1982, financial input has decreased. Implementation of the environmental provisions of the Convention will be difficult, not least in the area of conservation of endangered species such as whales. Measures need to be taken on a national basis first, and subsequently on a regional level. Boihndary
making
Professor Rainer Lagoni (FR Germany) began his discussion of boundary making by emphasizing the importance of well-defined areas for effective resource management. Fishermen and mining companies need clearly defined boundary lines to ensure peace and security at sea. Owing to the lack of delineated baselines in many areas of Southeast Asia, disputes and conflicts may arise. He questioned whether it was desirable that a coastal state should review all its existing baselines, closing lines and seaward limits to ascertain if they are in conformity with the 1982 Convention. For practical considerations, he felt that this was not possible, although some other workshop participants had argued in favour of a general review. This leads to the question how strict or flexible a coastal
MARINE
POLICY January 1988
state should be in the interpretation of the Convention, when it draws up its baselines, closing lines and seaward limits. It seems that in baseline delineation, the coastal state has some freedom in the choice of methods to be applied. Moreover, no party to an existing bilateral boundary agreement has the right to demand revision. Improved charts and lists of coordinates can be produced by undertaking a technical review of lines. In the event of an unresolved dispute, then the line should be drawn in conformity with the 1982 Convention. In Southeast Asia, EEZ boundaries will affect the fisheries of ASEAN and non-ASEAN countries. Preliminary ~lrrangements are being made, and temporary regimes in disputed areas are being adopted. Neighbouring states are obliged to inform each other of boundaries and to negotiate with each other if legal problems arise. Several workshop participants had opposed the idea that existing continental shelf boundary agreements should be reevaluated in light of the EEZ. There are both legal and practical reasons why the existing agreements should not be tampered with. To do so might invite conflict. Yet there is the question whether an existing continental-shelf agreement can serve as the basis for a single maritime boundary. In the case of the Gulf of Maine, for instance, the suitability of the single maritime boundary between Canada and the USA may be questioned. Special agreements may have to be reached concerning access to certain fishery stocks. In conclusion, Professor Lagoni urged that if delimitation agreements are lacking, they should be negotiated. To ensure that a sufficient cadre of well-informed personnel are available to draw up boundary lines, training opportunities should be offered to officials who will be engaged in this type of activity.
Professor Edgar Gold (Canada) pointed out that nearly IO different international agencies were concerned with one or another aspect of the law of the sea. He recalled that the policies of these agencies are determined by the member states themselves. By and large, most secretariats can be tapped as an underutilized resource. Being relntively unbiased, the secretariats of international agencies can play a significant role in evaluating the legal, social and economic aspects of the law of the sea issues. He then summarized a few of the activities undertaken by some of the agencies. Group one consists of agencies whose specific and implied tasks are relevant to the implementation process, namely. IMO. UNEP, FAO, IOC, ICAO. INEA. ITL and IHO. Group two consists of global agencies with related mandates, such as ILO, WHO, WMO, ITC, UNIDO. UNCTAD, lCJ, UNU, IMF, UNDP and the World Maritime LJniversity in Sweden, which has a two-year training course for officials from developing countries. The third group includes regional and nongovernmental organizations such as ASEAN, the South Pacific Forum, ESCAP. the Commonwealth Secretariat in London, the Seabed Authority in Jamaica, the Interna-
63
tional Tribunal in Hamburg, the Office for Ocean Affairs and the Law of the Sea, and the ~ontiI~enta1 Shelf Commission, inter aliiz. All of these agencies are undertaking law of the sea activities to a greater or lesser degree owing to the ‘new regime’ of the oceans.
General discussion Shao Jin (PRC) expressed concern over current confusion among international lawyers regarding the applicability of the right of innocent passage to warships in transit through territorial waters. Because of the lack of any provision in the 1982 Convention, it was necessary to deal with this issue by recourse to customary international law. According to the ‘package-deal’ theory of UNCLOS III, there must be a balance between the rights of coastal states and those of the maritime powers. It would be useful to secure agreement on the conditions prerequisite to the right of passage for warships through territorial waters of coastal states. Because of the 1982 Convention some changes in state practice are to be noted, such as the legislation of the USSR and France. Satya Nandan (United Nations) explained the role the office of the Secretary-General of the United Nations has played and will continue to play in ocean affairs and the law of the sea. States are presenting reports to his office on an annual basis. Dr Hasjim Djalal (Indonesia) voiced his disappointment at the final outcome on several issues negotiated at UNCLOS III. When no comment was offered against certain concepts, tacit agreement was assumed. Yet when the moment came for the countries to sign the Convention, quite a few countries withheld their signature. Particularly unsatisfactory in his opinion was the matter of passage. Article 42 is rather restrictive for coastal states, because they are obliged to control pollution. The rules of navigation are considered a victory for the maritime powers, but many of them have not signed the Convention, despite the compromises accepted by the nonmaritime countries. Dr Visoot (Thailand) pointed out that coastal states exercising any right accorded to them under the Convention must comply with the conditions attached to that right. This has particular relevance to the fishery rights of coastal states within the EEZ. Dr Visoot emphasized the need for certain privileges to be granted to countries which have traditionally fished in specific areas and are now to be displaced under the new law of the sea. Reference was made to the arrangement between Iceland and the t.JK.
National statements The P~~ili~~p~n~s Minister Jose D. Ingles noted that the Philippines was one of the original signatories of the UN Convention in 1982, and had ratified it in 1984. He also noted that representatives of his government have played an active role in the PrepCom discussions in Jamaica and that one of them had
been elected vice chairman of the special coInmission preparing for the estabIishment of the Intern~~ti~)n~ll Tribunal of the Law of the Sea. He commented that the Convention offers an opportunity for all states, especially the developing nations, to share the resources of sea areas not previously available to them. However, Minister Ingles enumerated some problem areas where his government had reservations about the compromises drawn up at UNCLOS III: namely (a) the implications for archipelagic states of Article 53 of the Convention, which allows for sealanes passage for all types of vessels (right of navigation and overflight) through and over the internal waters of archipelagic states; (b) the risk of maine polluti~~n to the marine environment; and (c) the Philippines’ reiteration of its claim to territorial limits, established in 189X. Minister Ingles then touched on the Philippines’ coordinated system of identification, inventory and assessment of marine resources such as fisheries (allowable catch in the EEZ), energy (petroleum, coal, geothermal and nuclear substances), and hard minerals. He next covered the matter of the continental shelf (seabed and subsoil) as determined by the Philippines, and recalled that his government had proclaimed its 200-mile exclusive economic zone in 1978, prior to the signing of the Convention. With its 652 000 square nautical miles, the Philippines had a great opportunity to develop its fishing industry further. As to regional cooperation for protection and preservation of marine resources, Minister Ingles pointed out that the oceans should not become a source of tension and conflict among nations, but must be developed harmoniously in a climate of mutual respect. It was significant that the Convention emphasized the obligation of all states to preserve and utilize the resources of the sea, so that all nations can benefit from this wealth, not least in areas which belong to the common heritage of mankind. With this in mind, the Convention requires states to cooperate on a global and regional level in formLIlating rules and standards to protect and conserve the marine environmerIt (including contingency plans for pollution, enc~)ur~~~ing research, and exchanging information on pollution of the marine environment). Minister Ingles referred to the rights of land-based mineral producer states which may be adversely affected by the production of minerals from the deep-ocean floor. He appealed to the International Seabed Authority for a conciliatory approach to this problem. He ended his remarks by touching on the problem of delimitation of maritime areas owing to overlapping exclusive economic zones and continental shelves among some of the states in Southeast Asia. Special reference was made to the Paracels and Spratleys Islands. Difficulties might be resolved by reference to the International Court of Justice in order to achieve an equitable solution. He stated that his government is willing to conclude agreements with other states, especially those of ASEAN, to settle any conflicting claims over maritime areas in order to maintain harmonious and amicable relations in the region.
MARINE
POLICY January
1988
Indonesia Dr Hasjim Djalal (Indonesia) made a few personal remarks concerning the prospects of implementing the Convention. He said that it would be wiser to ratify the Convention first, prior to adjusting national legislation. ‘Ratify first, adjust later’, was his slogan. Ratification will help bring the Convention into force, and reduce the need to rely on nebulous ‘customary international law’. International organizations should assist in the tasks of implementation in the manner contemplated by the Convention. He then proceecled to respond in detail to the recommendation contained in the Discussion Paper. Some of his points are summarized below. All states in Southeast Asia should participate in international research and training activities in various sectors of ocean development and management, bearing in mind financial considerations and the availability of training programmes. In new areas of national jurisdiction such as the exclusive economic zone, coastal states in the region should consult with neighbouring states, other interested states, and national, regional and international organizations to implement Parts IV, V and VI of the Convention. Dr Djalal observed that coastal states are required to take initiatives to harmonize their national policies and measures with their neighbours, either bilaterally or through appropriate regional organizations. As for entering into arrangements with neighbours, coastal states are obligated to do this only in areas specified by the Convention, and not in all respects, because of existing legitimate interests. On transit issues in straits areas, much of the responsibility is placed on coastal states, rather than straits states, as was the original intention. In the Straits of Malacca and Singapore, safety has been improved considerably, as well as navigational aids, charts and revolving funds to pay for potential pollution disasters. On environmental protection and fishery conservation, the Southeast Asian states should attempt to implement the Regional Action Plan for the Protection and Preservation of the Marine Environment, especially as regards pollution from shipping activities. There should be more effective regional cooperation in environmental planning and management. Coastal states should, on the other hand, establish environmental and safety standards in exploiting their offshore hydrocarbon resources. As for boundary-making, all states should review their presently established baselines and jurisdictional claims and examine delimitation issues with a view to bilateral or trilateral involvement, rather than on a regional basis which might be construed as interference with sovereign rights. If government officials are to be trained in the techniques of ocean boundary-making, their training will have to be financially supported in some way. The UNCLOS III disputes system provides for a variety of methods, including arbitration and conciliation, but the ASEAN countries are committed to a policy of regional cooperation. The establishment of a consultative mechanism under the auspices of ASEAN is good in theory, but
MARINE
POLICY January
1988
may be difficult to put into practice because of financial constraints. ASEAN is committed to cooperation in marine scientific research. ESCAP should promote consultation on ocean law in the Asia-Pacific region. ASEAN should support the UNEP Regional Action Plan for Southeast Asia for the protection and preservation of the marine environment. FAO, and especially IPFC, should play a greater role in law of the sea matters. In conclusion, Dr Djalal observed that the Convention was good but a ‘national policy’ is better. A ‘regional policy’ is good and an ‘international policy’ is generally good. In implementing the Convention, he cautioned, it is better not to amend it, because this may upset the existing balance. Singapore Chao Hick Tin summarized what he considered were the prospects for implementation of the I982 LOS Convention from the Singapore point of view. The Convention was ;I comprehensive legal framework, which could be regarded as heralding a ‘new era in international cooperation’. Despite the fact that Singapore played an active role in UNCLOS III, he cited some of the reservations his government has about the concepts of a I?-mile territorial sea and a XX-mile exclusive economic zone, which i)r considered neither territorial sea nor high seas. Singapore’s relevant departments and agencies are evaluating the merits of ratifying the Convention. Singapore’s navigational interest in the sea appears to be reasonably safeguarded in the 1982 Convention, but the same cannot be said for its fishing interest. despite the fact that its fishery development requirements arc not extensive at the present time. For Singapore. he said, implcmentation means keeping up to date with the laws enacted and measures undertaken by neighbouring countries. Therefore, he urged that there be an exchange of information on these issues among the ASEAN countries. For example, the designation of sealanes and the prescription of traffic separation schemes for safe passage through straits used for international navigation is of primary interest to Singapore. He noted that a coastal state bordering a strait is required to refer any proposal to IMO before implementation. However, if a vessel from 21transit state does not observe the regulations. enforcement measures may have to be taken, and this may cause difficulties in the future. Another problem cited was that of boundary delimitation between opposite or adjacent states. Several issues of this kind in the region have not been resolved. as far as Singapore is concerned. Finally, the problems of pollution control and preservation of the marine environment are issues on which the ASEAN confederation has taken some initiatives, such as those measures outlined in the UNEP Regional Action Plan. Mr Chao ended his address by calling for effective cooperation among the countries of Southeast Asia. particularly the ASEAN countries, to bring about the full implementation of the Convention.
65
Italimah Ismail presented her view of Malaysia’s attempts to implement the Convention in the context of boundary making, transit, protection of the marine environment, fishery development and management, and settlement of disputes, il~tcr a/k. She reiterated the view that the Convention is a ‘package’ which needs to be accepted ire /oto. and that the above-mentioned issues arc of equal importance and merit equal emphasis. Each of these issues must be seen within the overall framew~ork of the Convention which is an intricately balanced text. provicling the basis for universality and h~~rrnoniz~~ti(~n. She observed that the states of Southeast Asia are at varying stages in the impleme~~tatio~~ of the Conventi(~n during this transitional phase. It was emphasized that the Convention will be effective if states can coordinate their activities, compare their experiences, and make the new legal regime an incentive for new forms of international cooperation, without prejudging their position his-d-vis other states. States in the Southeast Asian region are in the process of reviewing their existing national legislations with the aim of bringing them in line with the provisions of the Convention. As for Malaysia in particular, the government is carrying out this exercise and simultaneously studying the provisions of the ~onvcntion to determine whether new laws are required, Malaysia is also considering the extent and implications of interde~lrtnlent~ll coordination to execute the duties and obligations arising from new offshore benefits. She added that the South China Sea has been identified as an area which, because of competing claims, has made limited progress in exploiting offshore resources and formulating comprehensive national rules and regulations. However, the states involved have initiated negotiations, some bilateral delimitation agreements have been signed. and other provisional arrangements have been made. One concern is the status of states not signatories to the Convention, raising concern whether this situation might undermine the effectiveness of the Convention. In particular, the issue could arise in the Straits of Malacca and Singapore if the governments of the area are faced with the problem of enforcement to ensure safety of navigation and protection of the marine environment. MS Halimah concluded that there is still much to be done by states during the transitional phase subsequent to their signing of the Convention, but prior to ratification.
Thailand Dr Arun Pandpong, adviser to the Prime Minister of Thailand, presented the concluding remarks of the Symposium from a global perspective. Dr Arun pointed out that all the ASEAN countries had actively participated in the long years of deliberations at
66
UNCLOS III. The ASEAN countries have all signed the Conventi~~n, and two countries have ratified it. The Convention is in the course of being evaluated by other ASEAN countries. Southeast Asia is aware of the significant impact of the new regime of the sea which has evolved in recent years. Several reasons were given for this - the diversity of characteristics of the countries in the region (coastal, geographically disadvantaged, archipelagic, Iandlocked and island); the abundance of living and non-living resources in the region; the strategic position between the Indian and Pacific Oceans; and the existence of many areas of conflicting claims by coastal states over the limits of territorial seas, coIltinenta1 shelves and exclusive economic zones. Dr Arun observed that all countries are in a state of transition with respect to the new law of the sea. Despite the initial support for the Convention, he noted that both positive and negative views persist during this uncertain phase prior to the full ratification of the Convention. One positive result of UNCLOS III is that several concepts have already achieved the status of ‘customary international law’ and preparatory activities for the future are well underway: such as the Preparatory Commission for the International Seabed Authority (PrepCorn), and for the International Tribunal of the Law of the Sea. It should be recalled that the law of treaties imposes an obligation on a state which has signed the treaty subject to ratification not to frustrate the object of the treaty prior to its entry into force. Dr Arun concluded his remarks by mentioning some of the following approaches which, from the point of view of Thailand, may contribute to the establishment of workable ways for implementing the Convention, while awaiting its entry into force. Efforts should be made by all states, supported by regional and international organizations, to harmonize their municipal laws and regulations in conformity with the provisions of the Convention. States of the same region should initiate the negoti~lti~~ll of bilateral or regional agreements on various issues, using the provisions of the Convention as a model or framework. A treaty originally concluded between a limited number of parties may be generalized by subsequent independent acceptance or imitation. With regard to the regimes of exclusive economic zone and archipelagic states, the need for a pragmatic and equitable reconciliation of interests should be borne in mind, as well as the fact that privileges imply responsibilities. With these concluding suggestioI~s, Dr Arun called for all states to work together towards the firm est~tblisllm~nt of a legal order for the seas which will serve not only vested national interests but also the common interests of the world community.
MARINE
POLICY January 1988