02/02/2012
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.
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]
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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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