182
M. Seta
In this way, to protect the marine environment from shipping, Japan has enacted
and modified the Marine Pollution Prevention Act. Specifically, in order to comply
with obligations provided in international instruments, including the IMO Conventions, Japan has amended the Act. At the same time, Japan has tended not to establish
environmental regulations that are stricter than international standards. There might
be two reasons for Japan’s passive position against such rules. First, MLIT, which
is strongly supported by the shipping industry, has led the domestic discussion on
shipping regulations. Needless to say, shipping companies pursue more cost-effective
shipping, and this sometimes conflicts with the protection of the marine environment
(for example, fuels that are better for the environment tend to be more expensive than
other fuels).
15 Therefore, it might be difficult for MLIT to adopt measures that impose
strict limitations on shipping even if they are better for the environment. Second,
Japan is apprehensive in taking its unilateral measures because sometimes these
measures would constitute a violation of international law, even if their purposes are
to protect the marine environment. For example, although the European Union (EU)
has considered applying its Emissions Trading System to the shipping industry,
16 it
has been pointed out that this unilateral application would constitute a violation of the
flag State principle.
17 Recently, ITLOS also found that the extraterritorial application
of some national regulations would constitute a violation of the flag State principle,
even if physical interferences are not conducted.
18 As Japan is overly solicitous
about violating international law, it tends only to adopt measures that are manifestly
authorised by international instruments.
19
10.2.2 The Involvement of the Private Sector
As discussed above, in Japan, international shipping regulations have been implemented by public authorities, and these regulations have been incorporated into
municipal laws. However, as fisheries association plays a significant role in the
Japanese fishing industry,
20 the private and quasi-private sectors also contribute to
15 See, for example, Sonal Singh, Shikha Jain, Venkateswaran PS, Avanish K. Tiwari, Mansa R.
Nouni, Jitendra K. Pandey, and Sanket Goel ‘Hydrogen: A Sustainable Fuel for Future of the
Transport Sector’, Renewable and Sustainable Energy Reviews, Vol. 51 (2015), pp. 623–633.
16 European Commission, ‘Reducing Emissions from the Shipping Sector’, available at https://ec.
europa.eu/clima/policies/transport/shipping_en (last visited 21 May 2019).
17 Makoto Seta, ‘How do We Justify Unilateral Exercise of Port State Jurisdiction? The Challenge by the EU in Protecting the Marine Environment’ in Vailka Sancin and Maša Koviˇ c Dine
(eds.), International Environmental Law: Contemporary Concerns and Challenges in 2014 (2014),
pp. 480–481.
18 The M/V “Norstar” Case (Panama v. Italy), Judgement (10 April 2019), paras. 222 and 225.
19 Makoto Seta, ‘International Treaties and Japanese Legislation against Maritime Terrorism:
Focusing on the Regulations for Marine Structures’, Journal of Waseda Institute of the Policy
of Social Safety, Vol. 10 (2019), p. 66 (in Japanese).
20 Smith, supra note 5, p. 203.
M. Seta
In this way, to protect the marine environment from shipping, Japan has enacted
and modified the Marine Pollution Prevention Act. Specifically, in order to comply
with obligations provided in international instruments, including the IMO Conventions, Japan has amended the Act. At the same time, Japan has tended not to establish
environmental regulations that are stricter than international standards. There might
be two reasons for Japan’s passive position against such rules. First, MLIT, which
is strongly supported by the shipping industry, has led the domestic discussion on
shipping regulations. Needless to say, shipping companies pursue more cost-effective
shipping, and this sometimes conflicts with the protection of the marine environment
(for example, fuels that are better for the environment tend to be more expensive than
other fuels).
15 Therefore, it might be difficult for MLIT to adopt measures that impose
strict limitations on shipping even if they are better for the environment. Second,
Japan is apprehensive in taking its unilateral measures because sometimes these
measures would constitute a violation of international law, even if their purposes are
to protect the marine environment. For example, although the European Union (EU)
has considered applying its Emissions Trading System to the shipping industry,
16 it
has been pointed out that this unilateral application would constitute a violation of the
flag State principle.
17 Recently, ITLOS also found that the extraterritorial application
of some national regulations would constitute a violation of the flag State principle,
even if physical interferences are not conducted.
18 As Japan is overly solicitous
about violating international law, it tends only to adopt measures that are manifestly
authorised by international instruments.
19
10.2.2 The Involvement of the Private Sector
As discussed above, in Japan, international shipping regulations have been implemented by public authorities, and these regulations have been incorporated into
municipal laws. However, as fisheries association plays a significant role in the
Japanese fishing industry,
20 the private and quasi-private sectors also contribute to
15 See, for example, Sonal Singh, Shikha Jain, Venkateswaran PS, Avanish K. Tiwari, Mansa R.
Nouni, Jitendra K. Pandey, and Sanket Goel ‘Hydrogen: A Sustainable Fuel for Future of the
Transport Sector’, Renewable and Sustainable Energy Reviews, Vol. 51 (2015), pp. 623–633.
16 European Commission, ‘Reducing Emissions from the Shipping Sector’, available at https://ec.
europa.eu/clima/policies/transport/shipping_en (last visited 21 May 2019).
17 Makoto Seta, ‘How do We Justify Unilateral Exercise of Port State Jurisdiction? The Challenge by the EU in Protecting the Marine Environment’ in Vailka Sancin and Maša Koviˇ c Dine
(eds.), International Environmental Law: Contemporary Concerns and Challenges in 2014 (2014),
pp. 480–481.
18 The M/V “Norstar” Case (Panama v. Italy), Judgement (10 April 2019), paras. 222 and 225.
19 Makoto Seta, ‘International Treaties and Japanese Legislation against Maritime Terrorism:
Focusing on the Regulations for Marine Structures’, Journal of Waseda Institute of the Policy
of Social Safety, Vol. 10 (2019), p. 66 (in Japanese).
20 Smith, supra note 5, p. 203.