Resolution to Fishery Disputes in the South China Sea through Regional Cooperation and Management, by Kuan-Hsiung Wang

Thursday, 02 February 2012 08:16 quanghung299

The disputes in the South China Sea could be categorized into two parts: one is on the sovereignty of those island features, and the other is the maritime zones that could be claimed. It is understandable that the best way to solve the disputes might be delimiting boundaries so that the areas of sovereignty and jurisdiction could be decided. However, such situation is not always possible. It is mainly because negotiation and adoption of a maritime boundary between the related States always focused on political considerations and there are no well-established laws for making boundaries. Although it is recognized that “equitable solution” is one of the most important principles in making boundary. However, there is no definite elements which have been decided, in spite of geographical and geological factors, coastal length, traditional fishing activities, relative impact on the livelihood and economic dependency are the considerations recognized in different cases.

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Under such circumstances, the joint development then could be treated as a way to solve the disputes. According to Article 74(3) and Article 83(3) of the 1982 UNCLOS,[1] both are provided with the term “provisional arrangements” in the situation that before the boundary lines are exactly made. The term “provisional arrangement” could be interpreted to “joint cooperation” which is a popular term has been quoted and cited by the leaders of the parties in the South China Sea. However, no practical exercises are realized. Lack of political will might be the reason.

It is not difficult to locate opportunities for joint cooperation in the South China Sea region. Joint military exercises, joint development on hydrocarbon resources, marine scientific research, marine environmental protection and fisheries cooperation are options to this end. To date, however, disputes surrounding possible hydrocarbon resources in the area and actions in favour of conservation and management of fishery resources have been delayed. Nevertheless, conservation and management of fishery resources could be the starting point for cooperation in this region and could have a “spillover effect” into other areas of cooperation.

In this respect, cooperating to manage and conserve fisheries resources is especially significant because fish are migratory, and even some of them are highly migratory. Moreover, overfishing is a serious and pressing problem in the region. In this regard, a maritime boundary cannot entirely protect a state’s fishery resources from encroachment, because fishery resources can migrate beyond the state’s jurisdiction, and overfishing beyond its borders could also have great impact on the fish stocks within its territorial boundaries.

Therefore, a proper management mechanism, subject to natural conditions, is necessary for the coastal states to keep stocks at sustainable levels. This is especially important for the littoral states around the South China Sea. Because this region is a semi-enclosed sea,[2] any change in the fishery policy-making could have far-reaching effects on the fishery resources in this area.

I. RegionalIssues

II.1. Overfishing

The development of globalization has already become an important phenomenon in the modern international society. Such phenomenon was demonstrated in the economy elements of production flowing with an unprecedented speed and scale in the global scope. Although the process of globalization has been witnessed for several decades, it is still under a drastic debate that if globalization would cause the collapse of national boundaries. Furthermore, will states be collapsed in the future due to their functions have been restricted?

For discussions or debates on “globalization”, most of them are on international financial transaction, technology flows, transnational cooperations, capital flows, cross border movements of people, and so forth. In other words, states, as the members of the international community, are getting closer and sharing common interests. Therefore, more functional fields, and even disputes, are emerging.

It is a trend that national sovereignty had been challenged by the developments mentioned above. Not only such phenomenon appears in daily economic life, but also appears in the development of international legal system, especially in the fields of high seas fisheries and international environmental protection.

For the purposes of statistics concerning the fish catches, a list of major fishing areas is maintained by the FAO.^{^[3]} The South China Sea region is within the Area 71, which is under the title of Western Central Pacific. In terms of global production of marine capture fisheries, it reached a peak of 86.3 million tonnes in 1996 and then declined slightly to 79.5 million tonnes in 2008, with great interyear fluctuations for this region. In 2008, the Northwest Pacific had the highest production of 20.1 million tonnes (25 percent of the global marine catch), followed by the Southeast Pacific, with a total catch of 11.8 million tonnes (15 percent), the Western Central Pacific with 11.1 million tonnes (14 percent) and the Northeast Atlantic, with 8.5 million tonnes (11 percent).^{^[4]}

More detailedly, total production in the Western Central Pacific grew continuously to a maximum of 11.4 million tonnes in 2007 and then decreased slightly in 2008. This area contributes about 14 percent of global marine production. Despite this apparently positive situation, there are reasons for concern regarding the state of the resources, with most stocks being either fully exploited or overexploited (many also depleted), particularly in the western part of the South China Sea. The high catches have probably been maintained through expansion of the fisheries to new areas, and possible double counting in the transshipment of catches between fishing areas, which leads to bias in estimates of production, potentially masking negative trends in stock status.^{^[5]}

The resources of the South China Sea, living and non-living, are rapidly being exploited by the people of the region, who are heavily concentrated along the coastline. Overfishing or a declining average annual fish catch now threatens the extensive fishing industry. Many fishermen are forced to apply more efficient and aggressive fishing techniques, and to venture further out to new fishing grounds. For the most extreme cases, some even apply illegal methods such as blast fishing and cyanide poisoning. Fish and coral habitats are also degraded by increased sedimentation, especially from land development. Coral reefs have been ravaged to provide building materials and plundered for ornamental commodities.[6]

(continuing)

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[1] UNCLOS Article 74(3) provides “Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.” [italics added]

[2] UNCLOS Article 122 provides that "[E]nclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.

[3] http://www.fao.org/fishery/area/search/en.

[4] FAO, World Review of Fisheries and Aquaculture (Rome: FAO, 2010), p. 35.

[5] Ibid., p. 39.

[6] http://www.southchinasea.org/why.html.

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International Law in the South China Sea: Does it drive or help resolve conflict?, by Stein Tønnesson[15/02/2012 02:34]
Where’s the Stake? U.S. Interests in the South China Sea, by Jonathan G. Odom[15/02/2012 02:19]
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Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco Benatar [11/01/2012 02:55]
UNCLOS and maritime security in the South China Sea, by Nguyen Thi Lan Anh[11/01/2012 02:37]
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Growing tension in South China Sea – Causes and Cures, by S. D. Pradhan[26/12/2011 07:05]
Abstract of The Risk of Applying Realpolitik in Resolving the South China Sea Dispute: Possible Implications on Regional Security. by Renato De Castro[26/12/2011 05:59]
South China Sea: China’s Rise and Implications for Security Cooperation, by Koichi Sato[19/12/2011 07:28]
China, Vietnam and the South China Sea Disputes: Assessing the Implications of the May-June 2011 Incidents, by Ramses Amer[19/12/2011 07:08]
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Third International Worshop

Can a limited purpose maritime and air defence identification zone be established over the South China Sea?, by Mary George

To stimulate South China Sea regional security cooperation in the control of piratical attacks against ships, this paper proposes the establishment of a limited purpose maritime and air defence identification zone over the South China Sea.

Recent Developments in the Philippine Baselines Law, by Raul C. Pangalangan

The Philippines recently passed a 2009 Baselines Law that, it was hoped, would finally confront its long-standing dilemma on whether to abandon its 1898 “treaty lines” altogether and adopt the modern rules on the Law of the Sea. That hope did not come to pass.

International Law in the South China Sea: Does it drive or help resolve conflict?, by Stein Tønnesson

Abstract

The interplay of power and law in the South China Sea is not well understood. To analyze the disputes over navigation rights, sovereignty to islands, and delimitation of maritime zones we need to grasp how states define and defend their geopolitical interests as well as the ways in which international law influences their claims and conflict behaviour. This paper starts with the huge difference in interpretations made by geopolitically oriented political scientists and more normatively or legally oriented scholars. Then the paper asks how developments in international law have affected the conflicts in the South China Sea historically. It establishes parallel histories of alternation between periods of conflict and détente and of legal developments, both in customary and treaty-based international law. The main emphasis is on the law of the sea. The paper concludes by establishing causal linkages between the two histories, while seeking to ascertain in what ways the law as such has influenced conflict behaviour. Has it exacerbated disputes by encouraging conflictual claims? Or has it established rules and procedures that help manage or resolve conflicts? The paper is written on the assumption that the answers we give to these questions may influence the way we see the prospects of future peace in the South China Sea.

Where’s the Stake? U.S. Interests in the South China Sea, by Jonathan G. Odom

Introduction

Much of the legal discussion about the ongoing situation in the South China Sea focuses upon the United Nations Convention on the Law of the Sea (UNCLOS)[1], a convention that was concluded in 1982. During that early 1980's timeframe, there was an iconic television commercial[2] in the United States promoting the fast-food chain of restaurants known as Wendy’s. The commercial showed three little old ladies standing at a cash register of a fictional restaurant that was competing with Wendy’s. Behind the ladies was a sign on the wall that read, "Home of the Big Bun." On the countertop was a large hamburger bun with an extremely small meat patty. Each of the old ladies stared intensely at the bun. Two of the ladies were admiring the bun. The middle lady said, "It certainly is a big bun. It's a very big bun. It's a big fluffy bun. It's a very big fluffy bun." The lady on the right, however, was wholly unimpressed with the large bun. Over and over, she kept yelling "Where's the beef?" across the counter to anyone who might listen. At the conclusion of the television commercial, as the screen faded to black, the viewer could hear the third lady doubtfully telling her colleagues, "I don't think there is anybody back there."

A Bilateral Network of Marine Protected Areas between Vietnam and China: An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?, by Hai-Dang Vu

Since 1999, China has enacted an annual fishing ban for two or three months in the summer in the North-Western part of the South China Sea. This year (2011), the ban took place from May 16^th to August the 1^st and in an area between the latitude 12° North to the North and longitude 113° East to the West.[1]Any fishing vessel that goes into this area during the banis subjected to fines and its catches and gear confiscated.[2]According to Chinese news and scholars, this fishing ban is necessary to protect the sustainability of marine life in this area and prevent overfishing[3] and has produced positive results[4].However, critics, including from China, question the effectiveness of this measure. Many commercially important fishes are not breeding at the time of the fishing ban. Furthermore, after a long pause due to the ban, fishing activities would increase manifold, which causes more risk of depletion of the stocks.[5]

Regional Cooperation in the South China Sea, by Jon M. Van Dyke

The Duty to Cooperate in Semi-Enclosed Seas

The South China Sea is a semi-enclosed sea governed by Part IX of the Law of the Sea Convention,[1] which says in Article 123 that countries bordering such seas “should co-operate with each other in the exercise of their rights and the performance of their duties under this Convention” More specifically, they are instructed to “endeavor, directly or through an appropriate regional organization (a) to co-ordinate the management, conservation, exploration, and exploitation of the living resources of the sea” and also to co-ordinate their activities “with respect to the protection and preservation of the marine environment.” The countries bordering on the South China Sea have failed to create an effective regional organization, and their cooperation “directly” has been generally unsuccessful as well. The Coordinating Body on the Seas of East Asia (COBSEA) has been mostly dysfunctional and the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA)has been modest in its accomplishments. No effective organization to manage the shared fisheries has been established.

Resolution to Fishery Disputes in the South China Sea through Regional Cooperation and Management, by Kuan-Hsiung Wang

The South China Sea: Cooperation for Regional Security and Development, by Hasjim Djalal

The efforts to develop cooperation for regional security and development, so far, has involved some formal approach of ASEAN and some informal approach by academic institutions and some informal unofficial approach by some South China Sea officials in their personal capacities. The formal approach has resulted in the Declaration of Conduct by the Foreign Minister of ASEAN and China in 2002 as well as by China and the Philippines, the Philippines and the Vietnam in formulating some confidence building measures or Code of Conduct between them. The informal approach has been initiated by Indonesia through the Workshop Process on Managing Potential Conflicts in the South China Sea since 1990. It should be noted however, that while the formal approach excludes Chinese Taipei in the process, but include Myanmar as an ASEAN Member although it is not located in the South China Sea, the second informal approach, however, includes Chinese Taipei as an “entity” in the South China Sea issues although no states around the South China Sea area has any diplomatic relations with the Chinese Taipei.

The Internationalization of the South China Sea: Conflict prevention and management, by Leszek Buszynski

Introduction

The South China Sea issue began as a territorial dispute over the sovereignty of the islands and sea territory involving China and five ASEAN countries, Vietnam, the Philippines, Malaysia, Brunei and Indonesia. Both China and Vietnam claim the entire area and the islands within while the Philippines, Malaysia and Brunei have laid claims to contiguous areas based on EEZs and continental shelves and first discovery. Had it been just a territorial issue it could have been resolved in some way as a product of Chinese efforts to reach out to ASEAN and to forge stronger ties with the region. Later the issue involved access to the oil and gas reserves of the sea which became critical as global demand for energy rose and claimants devised plans to exploit the hydrocarbon reserves of the area. Disputes erupted over the competing claims, particularly between China and Vietnam, which at times threatened to escalate. Claims to energy resources need not result in conflict, however, and can be managed on the basis of joint or multilateral development for which there are various precedents and models though none quiet as complicated as would be required for the South China Sea.

Straight baselines around insular formations not constituting an archipelagic state, by Erik Franckx & Marco Benatar

I. Introduction

The South China Sea (SCS) dispute has proven to be a hotbed for a variety of juridical quarrels, ranging from the extent of maritime zones[1], to territorial insular claims[2] and navigational rights.[3] One of the outlying issues that warrants closer examination concerns the baselines to be drawn around mid-ocean SCS islands.[4] As a starting position, one would surmise the applicability of the regime of normal baselines in accordance with the United Nations Convention on the Law of the Sea.[5]

UNCLOS and maritime security in the South China Sea, by Nguyen Thi Lan Anh

Maritime security is a relatively new concept and there are several approaches on its definition within the overall concept of security in international relations. Maritime security is developed to emphasize the importance of maintaining good order at sea in terms of the use and management of the marine resources for human development. In a hotspot like the South China Sea, where sovereignty disputes and overlapping maritime claims are still escalating and complicated, the maintenance of maritime security is a vital issue, covering all aspects of traditional and non-traditional security. With regard to traditional security, the current tension and the modernization of army, particularly navy forces indicated that the parties had prepared for the use of force and armed conflict at regional level may occur. In non-traditional aspects, maritime and aviation safety, marine environmental protection, marine biodiversity and the maintenance of good livelihood for the people are among the fields that currently being seriously threaten.

Exclusive Economic Zone in Major Media and Academic Journals in 2011: South China Sea and Other Seas, by Yearn Hong Choi

Introduction

Every coastal nation attempts to expand its sea territory by extending or expanding exclusive economic zone to the maximum possible. The EEZ was a new concept and a specific legal regime in the Law of the Sea Convention, building on the “exclusive fishing zones” and “fishing conservation zones” already in existence. The EEZ regime in the Convention was primarily aimed at living resources of the waters superjacent to the seabed. Although Article 56 (1) (a) stipulates that in the EEZ, “the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil,” Article 56 (3) affirms that the rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.” The EEZ is and must be an environmental conservation concept: However, it is far from such a novel concept in reality. It is considered or interpreted as the coastal State’s privilege to claim its sovereign sea. Rights without obligations or duties have been claimed, rather blindly. This is something pathetically wrong or very ridiculous. Under the circumstances, 200 nautical miles of exclusive economic zone has been rather abused.

Growing tension in South China Sea – Causes and Cures, by S. D. Pradhan

The recent escalation in tension in South China Sea has indicated the need for objectively looking at the causes of dispute and the recent developments both negative and positive with a view to suggest measures todiffuse the situation, which according to some security experts has the potentials to escalate into an armed conflict and to help the involved nations to find a permanent solution.

Abstract of The Risk of Applying Realpolitik in Resolving the South China Sea Dispute: Possible Implications on Regional Security. by Renato De Castro

Located in the heart of Southeast Asia, the South China Sea is a semi-enclosed sea surrounded by China and several smaller and weaker Southeast Asian powers such as the Philippines, Vietnam, Malaysia, and Brunei. Since the mid-1970s, these littoral states have been locked in a chronic competition as each one seek to extend its sovereignty and jurisdictional claims over more than a hundred islets, reefs, and rocks and their surrounding waters. The biggest among the claimant states, China has shown propensity to use coercive diplomacy and even actual force to pursue its territorial claims. In 1974, its forces drove the South Vietnamese from the Paracel Islands north of the Spratlys. Then in 1988, Chinese forces dislodged Vietnamese forces from Johnson Reef, after they sunk three Vietnamese trawlers near Fiery Cross Reef. China’s promulgation of a territorial law claiming a large portion of the South China Sea in 1992, and Manila’s discovery of Chinese military structures on Mischief Reef in 1995 triggered a serious diplomatic row between the Philippines and China in the mid-1990s.

South China Sea: China’s Rise and Implications for Security Cooperation, by Koichi Sato

In March 2010[1], Chinese diplomats told senior Obama administration officials that China (People’s Republic of China: PRC) would not tolerate any interference in the South China Sea, now part of China’s “core interest” of sovereignty. The People’s Liberation Army (PLA) navy and the Chinese maritime security agencies have begun to deploy their battleships and patrol boats in the South China Sea. Tensions between China and its Southeast Asian neighbors are on the rise. The United States, Japan, and Australia also show concern for the security of Sea Lines of Communication (SLOC) in the South China Sea. It is also said that the PLA navy has a plan to develop aircraft carriers. This paper analyzes these maritime challenges and explores implications for the security cooperation between China and its neighboring countries including Japan and the United States.

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