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Enhanced De Facto Constraints Imposed by Non-legally Binding Instruments and Interactions with Normative Environment: An Analysis of the Joint Statements for the Conservation and Management of Japanese Eel Stock

Published online by Cambridge University Press:  02 October 2023

Kazuki HAGIWARA*
Affiliation:
Lecturer, Fukuoka University, Fukuoka, Japan; Visiting Researcher, University of Ottawa, Ontario, Canada

Abstract

Since 2012, Japan, China, South Korea, and Chinese Taipei have consecutively held informal consultation meetings to discuss the conservation of Japanese eel stock. As a conservation and management measure, these participants adopted the Joint Statement in 2014 to regulate the initial input of Japanese eel seeds into aquaculture ponds. Despite the fact that the input limits were de facto constraints, these measures were implemented as domestic legal regulations in each participant's jurisdiction. This study examines the nature of the de facto constraints imposed by the Joint Statement for conserving and managing Japanese eel stock as a case study of stock regulations. This study further explores the possibilities of strengthening the de facto constraints through interactions with the normative environment; that is, the principle of sustainable development, domestic laws, and the relevant provisions in the United Nations Convention on the Law of the Sea (UNCLOS).

Type
Article
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the Asian Society of International Law

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References

1 The term “binding” or “bindingness” means that the entities (States and state organs, such as ministries and agencies, sub-national territorial units, etc.) are in a relationship based on legally created rights and obligations under international law. Although the term non-legally binding “agreement(s)” seems to be generally accepted in the literature, this paper uses the term non-legally binding “instrument(s)” so as not to prejudice the participants reached an agreement. Usually, participants to non-legally binding instruments carefully avoid using the term “agreed” or “reached an agreement” in the text; thus, they intend not to give a legal form and legal effects to those documents.

2 Andreas J. ZIMMERMAN and Nora JAUER, “Possible Indirect Legal Effects under International Law of Non-Legally Binding Instruments” KFG Working Paper Series, No. 48, May 2021, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3840767.

3 The meaning of the phrase “de facto” in the dictionary is described as “existing in fact, although perhaps not intended, legal, or accepted” (see online: Cambridge Dictionary:https://dictionary.cambridge.org/ja/dictionary/english/de-facto). The term “de facto” in this paper refers to the nature of any conservation and management measures (constraints/ standards) and joint programmes (cooperation) that are established, as intended, to be non-legally binding by informal instruments. Once the participants of the non-legally binding instrument have incorporated these constraints, standards, or cooperative frameworks are incorporated into their domestic legal system, their contents are “de jure” and are legally binding in their domestic legal system. However, this fact does not change the “de facto” nature of constraints, standards, and joint programmes established by the non-legally binding instruments at the international level between the participants. In short, this paper uses the term “de facto” in terms of the non-legally binding nature of the constraints or standards at the international level, irrespective of the fact that these constraints and standards are incorporated into domestic legal regulations so that they possess a legally binding nature at the domestic level.

4 Philippe GAUTIER, “Non-Binding Agreements” in Rüdiger Wolfrum, ed., Max Planck Encyclopedia of Public International Law (https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1469?rskey=YvPFcw&result=1&prd=MPIL).

5 Zimmerman and Jauer, supra note 2 at 5.

6 NOLLKAEMPER, André, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint (Norwell, Massachusetts: Kluwer Academic Publishers, 1993) at 252Google Scholar. See also Anne PETERS, “The Global Compact for Migration: to sign or not to sign?” (21 November 2018) online: EJIL:Talk! https://www.ejiltalk.org/the-global-compact-for-migration-to-sign-or-not-to-sign/. Peters mentions that “a strictly dichotomous view of law versus non-law pushes out of the picture many interesting and important normative phenomena and would make it more difficult to understand what is really going on in global governance.”

7 Joint statement of the Bureau of Fisheries of People's Republic of China, the Fisheries Agency of Japan, the Ministry of Oceans and Fisheries of the Republic of Korea and the Fisheries Agency of [the]Chinese Taipei on International Cooperation for Conservation and Management of Japanese Eel Stock and Other Relevant Eel Species, 17 September 2014, online: Japan Ministry of Agriculture, Forestry and Fisheries https://www.jfa.maff.go.jp/j/saibai/pdf/140917jointstatement.pdf [Joint statement].

8 For the production cycle of Japanese eels, see Figure 1 in Appendix.

9 It seems that the term “normative environment” is not defined in the literature of international law. The term in the Koskenniemi's report on the problem of fragmentation of international law meant the system of international law which includes “not only whatever general law there may be on that very topic, but also principles that determine the relevant legal subjects, their basic rights and duties, and the means by which those rights and duties may be supplemented, modified or extinguished.” Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (ILC), finalized by Martti KOSKENNIEMI, UN Doc.A/CN.4/L/682 (2006), online: https://legal.un.org/docs/?symbol=A/CN.4/L.682 [ILC Study Group Report]. Thus, “customary law, general principles of law and general treaty provisions” constitute the normative environment, see para 421. For the present article, because it examines not only the interaction with international law but also the process creating domestic regulations, the term “normative environment” includes not only international law but also municipal laws and procedures.

10 For analysing the process of incorporating the initial input limits into the domestic regulations, this paper focuses on the Japan's municipal process.

11 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S 3, 424 (entered into force 16 November 1994) [UNCLOS].

12 Zimmerman and Jauer, supra note 2, at 8.

13 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) [2014] I.C.J. Rep. 226.

14 Ibid., at paras 80, 83.

15 Whaling in the Antarctic, Counter Memorial of Japan, vol. 1, 373, at para 8.62.

16 Ibid., at para 8.63.

17 Ibid., at para 8.64 (emphasis in original).

18 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), supra note 13 at para 83.

19 Ibid., at para 137.

20 Ibid., at paras 137, 144.

21 Ibid., at para 144.

22 Ibid., at para 127.

23 Ibid., at para 83.

25 Ibid., at paras 80, 137, and 144.

26 Although the Philippines was not included in the “four Participants” of the Joint Statement or the Joint Press Releases, it occasionally attended the Informal Consultation in the following years.

27 Joint statement, supra note 7, at para 1.

28 “Unagi wo meguru jokyo to taisaku ni tsuite” (On the state of affairs on eel and countermeasures) (The title was translated from Japanese translation by the current author) (July 2023), online: Japan Ministry of Agriculture, Forestry and Fisheries https://www.jfa.maff.go.jp/j/saibai/attach/pdf/unagi-17, [JFA Eels].

29 TSUKAMOTO, Katsumi, “Discovery of the spawning area for Japanese eel” (1992) 356 Nature at 789Google Scholar.

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31 JFA Eels, supra note 28 at 1.

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33 Joint statement, supra note 7, at Paragraph 1.

35 Hiroshi HAKOYAMA, Leanne FAULKS, Sakie KODAMA, Chiaki OKAMOTO, Hiroka FUJIMORI, Ayu DARYANI, and Masashi SEKINO, “Japanese Eel, Anguilla japonica” in Fisheries Agency of Japan & Japan Fisheries Research and Education Agency, Current Status of International Fishery Stocks in 2021 (31 March 2022), online: Fisheries Agency of Japan & Japan Fisheries Research and Education Agency https://kokushi.fra.go.jp/R03/R03_82_ELJ_English.pdf, at 6; JFA Eels, supra note 28 at 3.

36 In the reply to the author's inquiry the JFA explained that for these two meetings the participants did not anticipate issuing the outcomes jointly, therefore there was no unified press release.

37 JFA, “Press Release of the Outcomes of the 8th Meeting” (2015), online: JFA https://www.jfa.maff.go.jp/j/saibai/attach/pdf/unagi-95.pdf; “Press Release of the Outcomes of the 9th Meeting” (2016), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/attach/pdf/180608-10.pdf (available only in Japanese).

38 JFA, “Joint Press Releases of the 14th Meeting” (2021), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/attach/pdf/210727-3.pdf [2021 Joint Press Release]; JFA, “Joint Press Release of the 13th Meeting” (2020) [2020 Joint Press Release] (as the link to this press release has been removed from the JFA website, please contact the author through the email provided to receive a copy of this meeting); JFA, “Joint Press Release of the 12th Meeting” (2019), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/attach/pdf/190531_21-6.pdf [2019 Joint Press Release]; JFA, “Joint Press Release of the 11th Meeting” (2018), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/attach/pdf/180713-4.pdf [2018 Joint Press Release], JFA, “Joint Press Release of the 10th Meeting” (2017), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/170711.html [2017 Joint Press Release].

39 2021 Joint Press Release, supra note 38. On the significance of this reference, see Section IV below.

40 Ibid., at para 2.

41 See JFA, “Joint Press Release of the 15th Meeting” (2022), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/env-inv/attach/pdf/210727-8.pdf; “Joint Press Release of the 16th Meeting” (2023), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/attach/pdf/230727-1.pdf.

42 ŌNUMA, Yasuaki, International Law in a Transcivilizational World (Cambridge: Cambridge University Press, 2017) at 136Google Scholar.

43 U.S. Government Publishing Office, “Senate Committee Print 106-71-Treaties and Other International Agreements: The Role of the United States Senate” (January 2001), online: Library of Congress https://www.congress.gov/committee-print/106th-congress/senate-committee-print/66922, at 60.

44 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [VCLT], art. 2, 3 and 11.

45 The Court confirming the position taken in the Greece v. Turkey (infra note 45) judgment mentioned that “international agreements may take a number of forms and be given a diversity of names”. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Question on Jurisdiction and Admissibility [1994] I.C.J. Rep. 112 at para 23 [Qatar v. Bahrain].

46 Aegean Sea Continental Shelf (Greece v. Turkey), Questions of Jurisdiction and/or Admissibility, [1978] I.C.J. Rep. 3 at para 96 [Greece v. Turkey]. See also Qatar v. Bahrain, supra note 44 at para 23.

47 See Pulp Mills on the River Uruguay (Argentina v. Uruguay), Separate Opinion of Judge ad hoc Torres Bernárdez, [2010] I.C.J. Rep. 233, 245 at para 44. For the “understanding” the Court explicitly confirmed that it bound the parties, see para 128. For the “press release”, Pauwelyn considered that the Court “applied a joint press communiqué as an ‘agreement’ between Argentina and Uruguay, even though the communiqué was neither a formal treaty nor formally signed by the respective ministers.” See PAUWELYN, Joost, “Is It International Law or Not, and Does It Even Matter?” in PAUWELYN, Joost, WESSEL, Ramses, and WOUTERS, Jan, eds., Informal International Lawmaking (Oxford: Oxford University Press, 2012) 125, 132CrossRefGoogle Scholar. The Court used the terms “press release” and “communiqué” interchangeably. See Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment of 20 April 2010) [2010] I.C.J. Rep. 14 [Pulp Mills], at paras 132, 133, 135, and 138.

48 Pulps Mills, supra note 47 at para 128.

49 Replying to the author's inquiry, the JFA confirmed that it considered the joint statement and the following joint press releases as creating no legal rights or obligations between the participants; rather, it treated these documents as expressing joint commitments regarding the conservation and management measures that each participant should implement as part of its own responsibility.

50 See ASADA, Masahiko, “How to Determine the Legal Character of an International Instrument: The Case of a Note Accompanying the Japan-India Nuclear Cooperation Agreement” (2018) 20 International Community Law Review 192, 207–8CrossRefGoogle Scholar; FITZMAURICE, Malgosia and MERKOURIS, Panos, “Treaty Genesis: Concept of a Treaty in International Law, Including Its Formation and Motion” in Treaties in Motion: The Evolution of Treaties from Formation to Termination (Cambridge: Cambridge University Press, 2020) 23, at 53–4CrossRefGoogle Scholar

51 Fitzmaurice & Merkouris, supra note 50 at 27.

52 Greece v. Turkey, supra note 46 at para 96.

53 Qatar v. Bahrain, supra note 45, at para 25.

54 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) [1995] I.C.J. Reports 6 at para 41. In this regard, Tamada analyzed that the Court emphasized to ascertain “actual terms” rather than the intention of the parties in comparison with the South China Sea Arbitration; see TAMADA, Dai, “The Japan-ROK Comfort Women Agreement: Unfortunate Fate of a Non-Legally Binding Agreement” (2018) 20 International Community Law Review 220, at 228CrossRefGoogle Scholar. However, Asada takes the view that the scrutiny of “actual terms” and the ascertainment of the parties’ intention are not identical but are closely related to each other in the sense that the Court stressed the intention at the time of giving signatures. There was no need to speculate retrospectively what was intended in the statement presented later by the signatories; see Asada, supra note 50 at 208–9 (emphasis in the original).

55 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, [2017] I.C.J. Rep. 3 at para 42. At this point, see also Tamada, supra note 54 at 255.

56 South China Sea Arbitration (Philippines v China), Questions on Jurisdiction and Admissibility, [2015] P.C.A. Case No. 2013-19 at 213 [South China Sea Arbitration].

57 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 U.N.T.S. 243 (entered into force 1 July 1975).

58 Tamada, supra note 54 at 236.

59 The English translations of the 1990 Minutes submitted by the parties were reproduced in the judgment. Qatar v. Bahrain, supra note 44 at para 19.

60 C.f. South China Sea Arbitration, supra note 56 at para 214.

61 See the case of the 2015 Comfort Women Agreement, Tamada, supra note 54 at 239, fn 39.

62 For a unique example of the 2015 Comfort Women Agreement, see Tamada, supra note 54 at 220 ff.

63 On the statement by President Xi Jinping regarding the “reunification”, see “China-Taiwan tensions: Xi Jinping says ‘reunification’ must be fulfilled” BBC (9 October 2021), online: BBC <https://www.bbc.com/news/world-asia-china-58854081>.

64 Despite China's non-participation after the adoption of the Joint Statement, the benefits of adopting the format of a non-binding instrument remain. This is due to the fact that Chinese Taipei remains a non-state actor in relation to other participants. It should be noted that this consideration does not negate the possibility of treaties being concluded between states and non-state actors.

65 This distinction is corresponding to Paragraphs 2 and 3 of Article 73 of the Constitution of Japan, 3 November 1946, online: Japanese Law Translation https://www.japaneselawtranslation.go.jp/en/laws/view/174/tb#je_ch5at9, which pertains to the Cabinet's functions, reads: “(2) Manage foreign affairs; (3) Conclude treaties. However, it shall obtain prior or, depending on circumstances, subsequent approval of the Diet.” Concluding “executive agreements” falls into the function “Manage foreign affairs”.

66 For the Ohira Three Principles, see NAKANISHI, Yusuke, “Defining the Boundaries of Legally Binding Treaties – Some Aspects of Japan's Practice in Treaty-Making in Light of State Practice” (2018) 20 International Community Law Review 169, at 186CrossRefGoogle Scholar.

67 Nakanishi, supra note 66 at 186.

68 See MIZUSHIMA, Tomonori, “A Note on “Executive Agreements” in Japanese Law: A Modest Contribution of an International Law Scholar to Public Law Studies” (2018) 227 Nagoya University Journal of Law and Politics 3, at 17–18Google Scholar.

69 MCNAIR, Lord, The Law of Treaties (Oxford: Clarendon Press, 1961) 15Google Scholar. McNair points out that the agreement between governments “is now becoming increasingly common, as a perusal of the United Nations Treaty Series will show. It is in keeping with the general tendency towards informality”.

70 Ibid., at 4.

71 Ibid., at 5.

72 Ibid., at 4.

73 Ibid., at 21.

74 Pauwelyn, supra note 47 at 142.

75 VCLT, arts. 7 and 8.

76 Pauwelyn, supra note 47 at 142–3.

77 Pauwelyn, supra note 47 at 144. In his term, “IN-LAW” means “informal international lawmaking”, see Pauwelyn, supra note 47, at 126.

78 See Sections V(2) and (3) of the paper.

79 See Peters, supra note 6. For an overview of the comparison between “the bright line school” and “the grey zone school”, see Pauwelyn, supra note 47 at 127–30. Pauwelyn observes that “The key to resolving this debate is this: being law and having legal effect must be distinguished. The mere fact that something falls on the non-law side does not mean that it has no legal effect.” For the cross-fertilization school, which takes the view that “non-law may have a whole range of possible effects on what is law and how it should be interpreted and applied”, see 152–3.

80 Peters, supra note 6 at 6; Gautier, supra note 4 at para. 19.

81 Peters, supra note 6.

84 Pauwelyn, supra note 47 at 153–4.

85 Ibid., at 154 (footnote omitted).

86 Ibid., at 155–7.

87 Günther HANDL, “Environmental Security and Global Change: The Challenge to International Law” (1990) 1:1 Yearbook of International Environmental Law 3, at 27.

88 Ibid., at 25.

89 Nollkaemper, supra note 6 at 234, 252.

90 2021 Joint Press Release, supra note 38; 2020 Joint Press Release, supra note 38; 2019 Joint Press Release, supra note 38; 2018 Joint Press Release, supra note 38.

91 Decision 18.198, CITES, online: CITES < https://cites.org/eng/node/56008 >.

92 Returning to the earliest appearance of the idea of sustainable development in the international context in 1893, the Behring Sea Fur Seals Fisheries Arbitration between the US and the UK addressed the issue regarding the preservation of the fur seal stock. See MOORE, John Bassett, History and Digest of the International Arbitrations to Which the United States Has Been a Party: Together with Appendices (Washington: Government printing Office, 1898) at 755Google Scholar.

93 MENSAH, Thomas. A., “Using Judicial Bodies for the Implementation and Enforcement of International Environmental Law” in BUFFARD, Isabelle et al., eds., International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Leiden, The Netherlands: Brill/Nijhoff, 2008) 797, at 789Google Scholar.

94 TOMUSCHAT, Christian, “The Concluding Documents of World Order Conferences” in MAKARCZYK, Jerzy ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (The Hague: Kluwer Law International, 1996) 563, at 563Google Scholar.

95 Even though the concept of sustainable development as such has not possessed a legal status, this does not mean that it does not have any legal relevance, especially when the concept is embodied in a treaty text or its preamble. For example, United StatesImport Prohibition of Certain Shrimp and Shrimp Products, W.T.O., Appellate Body Report adopted on 6 November 1998, WT/DS58/AB/RWT/DS58/AB/R, at paras 127–34, especially paras 129 and 130.

96 Case concerning Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) (Judgment of 25 September 1997) [1997] I.C.J. Rep. 7, at 77–8, para 140 [Gabčíkovo-Nagymaros Project].

97 Ibid., at 18, para 17, which states that “[t]he cumulative effects on the river and on the environment of various human activities over the years have not all been favourable, particularly for the water régime”. Although Judge Oda submitted his dissenting opinion, he supported the concept of sustainable development that the majority described. He mentioned that:

[i]t is a great problem for the whole of mankind to strike a satisfactory balance between more or less contradictory issues of economic development on the one hand and preservation of the environment on the other, with a view to maintaining sustainable development. Any construction work relating to economic development would be bound to affect the existing environment to some extent, but modern technology would, I am sure, be able to provide some acceptable ways of balancing the two conflicting interests.

See Case concerning Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Dissenting Opinion of Judge Oda [1997] I.C.J. Rep. 153, at 157–8, para 14.

98 Case concerning Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Separate Opinion of Vice-President Weeramantry 1997] I.C.J. Rep. 88, at 88.

99 Ibid., at 90.

100 SIMMA, Bruno, “Forward” in SCHRIJVER, Nico J., WEISS, Friedl, eds., International Law and Sustainable Development: Principles and Practice (Leiden, The Netherlands: Brill/Nijhoff, 2004)Google Scholar.

101 Jurisdictional Immunity (Germany v. Italy: Greece intervening), Judgment, [2012] I.C.J. Rep. 99 at 122, para 55.

102 Peters, supra note 6.

103 See Jennifer MCKAY, “Some Australian Examples of the Integration of Environmental, Economic and Social Considerations into Decision Making – The Jurisprudence of facts and context” in Duncan FRENCH, ed., Global Justice and Sustainable Development (Leiden, The Netherlands: Brill/Nijhoff, 2010) 327, at 328.

104 Article 192 stipulates that “States have the obligation to protect and preserve the marine environment”. Article 194(5) provides that “The measures taken in accordance with [Part XII] shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”

105 Daniel Thürer, “Soft Law” in Rüdiger Wolfrum, ed., Max Planck Encyclopaedia of International Law (https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1444?rskey=ZKxEQ6&result=1&prd=MPIL) at para 30.

106 Ibid., at para 32.

107 Gautier, supra note 4 at para. 1.

108 See DUPUY, Pierre-Marie, “International Law and Domestic (Municipal) Law” in Max Planck Encyclopaedia of International Law (Oxford University Press, 2015) at paras 48–52Google Scholar.

109 Ibid., at paras 48–9.

110 Cabinet Order No. 324, Kanpō, Honshi (Official Gazette) No. 6385, Order of 1 October 2014, at 4.

111 Ibid.

112 Ordinance of the MAFF No. 53, Kanpō, Gōgai (Official Gazette, Extra) No. 218, Order of 1 October 2014, at 3.

113 “Guidelines for 2015 Fishery Season Concerning the Quantity Allocation Related to the Input Limits of the Juvenile Japanese Eels for Eel Farming” JFA (14 November 2014), online: JFA http://www.jfa.maff.go.jp/j/press/saibai/pdf/141114_1-01.pdf.

114 Ibid., at para 2.

115 Cabinet Order No. 236, Kanpō Gōgai (Official Gazette, Extra) No. 111, Order of 20 May 2015, at 16.

116 Ibid.

117 Article 132(1) of the Fishery Act (Act No. 267, 1949), online: Japanese Law Translation https://www.japaneselawtranslation.go.jp/ja/laws/view/3846/tb, stipulates as follows:

It is prohibited for any person to gather or catch specified aquatic animals and plants (referring to aquatic animals and plants that are likely to be gathered or caught for the purpose of acquiring unlawful economic benefit and which are specified by Order of the Ministry of Agriculture, Forestry and Fisheries as those [are] likely to have serious impacts on the growth of the aquatic animals and plants or on the production activities of the fisheries when they are gathered or caught for that purpose; hereinafter the same applies in item (iv) of the following paragraph and Article 189).

Relatedly, Article 41 of the Ordinance for Enforcement of the Fishery Act entered into force on 21 December 2020, online: https://elaws.e-gov.go.jp/document?lawid=502M60000200047 (available only in Japanese) (translation by the current author), reads: The aquatic animals and plants as specified by Order of the Ministry of Agriculture, Forestry and Fisheries set forth in Article 132, Paragraph (1) of the Fishery Act are following: Juvenile eel (referring to eel whose length is 13 centimetres or less).

118 Article 189 of the Fishery Act, supra note 117.

119 Provisions to the Ordinance for Enforcement of the Fishery Act, supra note 117, art. 2.

120 For a list of relevant Public Notices since 2015, see infra note 132 below.

121 “Reply to Public Comment on the Draft Announcement regarding the Licence of Eel Aquaculture”, online: https://public-comment.e-gov.go.jp/servlet/PcmFileDownload?seqNo=0000221342.

122 Cabinet Order No. 230, 29 June 2001, online: JFA https://www.jfa.maff.go.jp/j/council/attach/pdf/index-6.pdf.

123 Ibid., art. 5.

124 Agenda Rules of the Fisheries Policy Council, online: JFA https://www.jfa.maff.go.jp/j/council/attach/pdf/index-7.pdf [Agenda Rules], art. 11.

125 Cabinet Order No. 230, supra note 122, art. 2

126 Fisheries Basic Act (Act No. 89, 2001), online: Japanese Law Translation https://www.japaneselawtranslation.go.jp/en/laws/view/4010, art. 36(3), 39; Cabinet Order No. 230, supra note 122, art. 5; Agenda Rules, supra note 124, art 10.

127 Agenda Rules, supra note 124, art. 10(1).

128 Ordinance of the MAFF No. 53, supra note 112 at 3.

129 Ordinance of the MAFF No. 54 Kanpō, Gōgai (Official Gazette, Extra) No. 111, Order of 20 May 2015, art. 5 at 19.

130 Article 42(3) of the Fishery Act, supra note 117.

131 Article 42(1) of the Fishery Act, supra note 117.

132 Ministry of AFF Public Notice No. 1778 (Kanpō Honshi (Official Gazette) No. 6573 (Notice of 13 July 2015) 4); Ministry of AFF Public Notice No. 1495 (Kanpō Honshi (Official Gazette) No. 6821 (Notice of 21 July 2016) 5); Ministry of AFF Public Notice No. 952 (Kanpō Honshi (Official Gazette) No. 7040 (Notice of 15 June 2017) 2); Ministry of AFF Public Notice No. 1330 (Kanpō Honshi (Official Gazette) No. 7284 (Notice of 14 June 2018) 3); Ministry of AFF Public Notice No. 425 (Kanpō Honshi (Official Gazette) No. 30 (Notice of 17 June 2019) 6); Ministry of AFF Public Notice No. 1167 (Kanpō Honshi (Official Gazette) No. 270 (Notice of 15 June 2020) 5); Ministry of AFF Public Notice No. 1151 (Kanpō Honshi (Official Gazette) No. 530 (Notice of 8 July 2021) 7).

133 “Comments by Mr. Sakurai, Director of Inland Waters Fishery Promotion Office, Minute of the 101st Meeting of the Resource Management Division” JFA (27 May 2020), online: JFA https://www.jfa.maff.go.jp/j/council/seisaku/kanri/attach/pdf/index-25.pdf, at 36.

134 “Comments by Director of Fish Ranching and Aquaculture Division, Minute of the 110th Meeting of the Resource Management Division” JFA (21 June 2021), online: JFA https://www.jfa.maff.go.jp/j/council/seisaku/kanri/attach/pdf/index-35.pdf, at 10.

135 However, the glass eel input regulation in the ROK is based on the farmers’ self-regulation, although a license system is installed by the legislature. On the domestic regulations in the ROK and Chinese Taipei, see the attached documents of the 14th meeting. See “Summary Table of Conservation and Management Measures for Eels (Japan)” JFA (27 July 2021), online: JFA https://www.jfa.maff.go.jp/j/press/sigen/attach/pdf/210727-6.pdf.

136 In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Philippines v. China), Award, P.C.A. Case No. 2013-19, 12 July 2016, online: PCA https://pcacases.com/web/sendAttach/2086, at para 956. See also YOUNG, Margaret A.Protection of the Marine Environment: Rights and Obligations in Trade Agreements” (2021) 9 Korean Journal of International and Comparative Law 196CrossRefGoogle Scholar, at 198–9.

137 UNCLOS, supra note 11, art. 197.

138 United Nations, Law of the Sea: Obligations of States Parties under the United Nations Convention on the Law of the Sea and Complementary Instruments (New York: United Nations, 2004), online: UN https://www.un.org/depts/los/doalos_publications/publicationstexts/E.04.V.5.pdf, at 2 para 6.

139 Ibid.

140 FRANCKX, Erik and Van de BOSSCHE, Koen, “The Influence of Environmental Law on the Development of the Law of the Sea: CITES and the International Law of Fisheries” (2011) 54 Japanese Yearbook of International Law 218, at 237–8Google Scholar.

141 See Johannes FUCHS, “Marine Living Resources, International Protection” in Rüdiger Wolfrum, ed., Max Planck Encyclopedia of Public International Law, at para 18. See also Franckx & Van de Bossche, supra note 140 at 238, fn 112.

142 IUCN, “Japanese eel (Anguilla japonica)”, online: IUCN Red List <https://www.iucnredlist.org/species/166184/176493270#geographic-range>.

143 Ibid.

144 KAIFU, Kenzo, YOKOUICHI, Kazuki, MILLER, Michael J., and WASHITANI, Izumi, “Management of Glass Eel Fisheries Is Not a Sufficient Measure to Recover a Local Japanese Eel Population” (2021) 134 Marine Policy 1CrossRefGoogle Scholar, at 2, 8, 9. However, there is a difference of views on whether the Japanese eel is a panmictic species. In this regard, see Hakoyama et al., supra note 35 at 4.

145 Article 67(1) reads: “A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of those species and shall ensure the ingress and egress of migrating fish.”

146 Kaifu et al., supra note 144, 8.

147 For the broad margin of discretion of Costal States, see Fuchs, supra note 141 and its accompanying text. C.f. Potential for a New CMS Agreement on the European Eel, Background Paper for the Workshop of European Eel Range States, prepared by Otto SPIJKERS and Alex Oude ELFERINK, (UNEP/CMS/Eels WS1/Doc.3), at 6. In terms of Articles 192 and 194(5), they interpreted Article 67(1) to mean that “[Costal States] must mitigate threats that impact the habitat of the eel, and regulate the harvesting of the species.” Kaifu takes a view in favour of the interpretation submitted by Spijkers and Elferink: see also Kenzo KAIFU, “Kokuren Kaiyo-ho-joyaku dai 67 jo wo nihon- unagi no hozen no kanten kara yondemiru” (Interpreting Article 67 of UNCLOS from the perspectives of the conservation of Japanese eel (The title was translated from Japanese by the current author)) (2018) 70(3) Hakumon 25, at 31.

148 “Part V—Article 67” in Myron H. NORDQUIST, Satya NANDAN, and Shabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982 (Leiden, The Netherlands: Brill/Nijhoff, 2013) at 681, para 67.1.

149 Ibid., at para 67.6.

150 Kaifu, supra note 147 at 30.

151 Article 67(3) reads:

In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in Paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in Paragraph 1 for the maintenance of these species.

152 Ellen HEY, William T. BURKE, Doris PONZONI, and Kazuo SUMI, The Regulation of Driftnet Fishing on the High Seas: Legal Issues (Rome: Food and Agriculture Organization of the United Nations, 1991) 8.

153 Nordquist, Nandan, and Rosenne, supra note 148, at 685, para 67.8(b).

154 Ibid., at para 67.8(c).

155 See ibid., at 646 para 63.12(a). In this regard, see the Request for an Advisory Opinion, submitted by the Sub-Regional Fisheries Commission (SRFC) (Request for Advisory Opinion submitted to the Tribunal), Advisory Opinion of 2 April 2015, at para 210, stating as follows:

The Tribunal observes that the obligation to “seek to agree . . .” under article 63, Paragraph 1, and the obligation to cooperate under article 64, Paragraph 1, of the Convention are “due diligence” obligations which require the States concerned to consult with one another in good faith, pursuant to article 300 of the Convention. The consultations should be meaningful in the sense that substantial effort should be made by all States concerned, with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks.

156 Nordquist, Nandan, and Rosenne, supra note 148, at para 61.1.

157 Cecilia ENGLER-PALMA et al., “Sustaining American Eel: A Slippery Species for Science and Governance” (2013) 16 Journal of International Wildlife Law and Policy 128, at 143.

158 On the European eel conservation and management scheme, see, for instance, European Commission, “Evaluation of the Eel Regulation: Final Report (June 2019)”, Directorate-General for Maritime Affairs and Fisheries, online: Publications Office of the European Union https://www.fishsec.org/app/uploads/2021/05/2019-External-Evaluation-of-the-EU-eel-regulation-EC-1100-2007.pdf

159 KAIFU, Kenzo, Unagi no Hozenseitaigaku (Eel Conservation Ecology) (Tokyo: Kyoritsu Shuppan, 2016)Google Scholar, at 102–5. (The title was translated from Japanese by the current author.)

160 “Press Release on the Outcomes of the Second Meeting of Scientists” JFA (June 13 2023) online: JFA https://www.jfa.maff.go.jp/j/press/sigen/230613.html (available only in Japanese).

161 European Commission, supra note 158 at 48.

162 United Nations, supra note 138, at para 6.

163 The commentary to the Draft Conclusion 3[2] states that “The character of subsequent agreements (…) of the parties under article 31, Paragraph 3 (a) (…), as “authentic means of interpretation” does not, however, imply that these means necessarily possess a conclusive, or legally binding, effect.” ILC, “Commentary to Conclusion 3 [2] Subsequent agreements and subsequent practice as authentic means of interpretation” in Report on the work of the sixty-eighth session (2016) (A/71/10) at [4]. Regarding this view, the commentary also recognizes that there is an opposite view that some scholars take on the effect and that this conclusion does not exclude the possibilities that the parties to reach legally binding agreement. See ibid., at para 5, fn 439.

164 Nollkaemper, supra note 6 at 252.

165 Guidelines of the Inter-American Juridical Committee on Binding and Non-Binding Agreements, “Binding and Non-Binding Agreements: Final Report” of the Inter-American Juridical Committee, presented by Duncan B. HOLLIS (1 November 2020), at 10–11 para 5.

166 Convention on the Conservation of Migratory Species of Wild Animals, 6 November 1979, 1651 U.N.T.S. 333 (entered into force 1 November 1983).

167 Chris WOLD, “A History of ‘AGREEMENTS’ under Article IV.3 and “agreements” under Article IV.4 in the Convention on Migratory Species” (UNEP/CMS/COP11/Inf.31), online: CMS https://www.cms.int/sites/default/files/document/COP11_Inf_31_History_of_Agreements_Eonly.pdf, at 11 para 34.

168 Ibid.

169 Resolution 2.6 Implementation of Articles IV and V of the Convention, online: CMS https://www.cms.int/gorilla/sites/default/files/document/Res2.6_E_0_0.pdf, at para 2. However, c.f. Resolution 3.5 Implementation of Article IV, Paragraph 4, of the Convention Concerning agreements [4], online: CMS https://www.cms.int/sites/default/files/document/Res3.5_E_0_0.pdf, at para 4. On this inconsistency, see Wold, supra note 167 at paras 27–32, 41.

170 Peters, supra note 6.

171 UNCLOS, supra note 11, art. 67(3).

172 Although Article 67 is not explicitly referred as a rule of reference, numerous non-legally binding instruments are enumerated for the implementation of the obligations under Articles 61(3) and 119(1)(a) by taking into account “any generally recommended international minimum standards, whether subregional, regional or global”. See United Nations, supra note 137, at 63, 65 respectively.

173 Article 74(1) reads as follows:

The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

Article 83(1) reads as follows:

The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

Moreover, it seems that the term “agreement(s)” used in Article 311 of UNCLOS also refers to legally binding agreement(s).

174 Nordquist, Nandan, and Rosenne, supra note 148, 980 at para 83.17.

175 Ibid.

176 Paragraph 4(2) of the joint statement states that “Participants will continue to closely work together in order to strengthen conservation and management measures for eel stocks. For this purpose, participants will consider possible establishment of legally binding framework as appropriate.”

177 Although the statement concerns the UN Fish Stocks Agreement, Barnes expects a possibility where non-legally binding instruments evolve into binding law. BARNES, Richard, “The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation?” in FREESTONE, David, BARNES, Richard, ONG, David, eds., The Law of the Sea: Progress and Prospects (Oxford: Oxford University Press, 2006) 233Google Scholar, at 258.

If the [UN Fish Stocks Agreement] can impact on fisheries management more generally, and if the “non-binding” instruments can evolve into binding law, then they will help rectify some of the substantive flaws of [UNCLOS]. The further development and implementation of the precautionary principle to fisheries is of central importance in this context.