Sino-Japanese joint fishery management in the East China Sea
6 Sino-Japanese joint fishery management in the East China Sea
Fishery resources in the East China Sea
The East China Sea is a semi-enclosed sea as defined under the 1982 United Nations Convention on the Law of the Sea (LOS Convention)1 shared among China, Japan, and Korea. It covers about 480,000sq miles (1,243,190sq km) and is bounded by the islands of Cheju (north), Kyushu (northeast), Ryukyu (east) and Taiwan (south) and by China’s mainland coast (west).2 It is a marginal sea with a wide continental shelf, and its average depth is 370m with a maximum of 2,719m. The East China Sea, due to its geographical location in the temperate zone and to the role of the Yangtze River mouth and other big rivers in China, is of dense biodiversity and high productivity. The ocean current system contributes to the formation of good offshore fishing grounds, especially near estuarine areas, where the ocean current, of high temperature and salinity, is mixed with the fresh waters of large rivers.3 For that reason, biological and chemical resources are plentiful, which in turn cherish more than 800 fish species, of which about 40–50 are of commercial fishing value, such as yellow croakers, hairtail, and squid. The annual productivity of fish could reach as much as 3.4 million tons.4
China is a big marine fishery country with an annual catch of more than 25.3 million tons,5 of which about 7 percent comes from its pelagic catch. That is to say, most of the catch is from China’s coastal waters. According to a statistic in 1996, China had a total area of 2.81 million sq km of marine fishing grounds.6 The East China Sea embodies 14 traditional fishing grounds for the Chinese, among which the Zhoushan Fishing Ground is the largest, and the catch in the East China Sea accounts for about 50 percent of the total in China.
Marine fishery is even more important for Japan than China since Japan is a maritime country. The East China Sea together with the Yellow Sea is one of the eight main coastal and offshore fishing grounds for Japan.7 According to a statistic in 2000, marine fisheries account for 65.8 percent of the total fisheries output. The production of marine fisheries is 5 million tons and trawling from the East China Sea 10,518 tons.8 However, the production from the East China Sea in 2000 was decreased in comparison with the figure in 1999 which was 19,206 tons, and this was possibly due to the implementation of the new Sino-Japanese Fishery Agreement.
With the end of World War II (1939–45), countries in East Asia were desperate to rebuild their homes which had been destroyed or damaged in the war. Acquisition of marine resources from the sea was one of the important means for subsistence and development. For Japan, the restrictive “MacArthur Line” was lessened and finally suspended in April 1952 so that Japanese fishermen could fish beyond the line.9 On the other hand, because during the war normal fishing operations were disrupted or discontinued, fishery resources were abundant afterwards.
After the founding of the People’s Republic of China (PRC) in 1949, the Chinese Government carried out an encouraging fishery policy so as to recover the fishery industry after the Civil War (1946–49) and Chinese fishermen were asked to take more fish from the sea.10 Meanwhile, Japan also encouraged its fishermen to go fishing along the Chinese coast. The 1950 Japanese regulations only allowed Japanese trawler fishing boats over 50 tons to operate west of 130°E longitude (which was changed to west of 128°E longitude in 1952), and actually pushed bigger fishing trawler boats into fishing areas far beyond the coast of Japan. As a result, approximately 900 Japanese fishing boats conducted fishing operations close by the Chinese coast from the tip of Shandong Peninsula to the mouth of the Yangtze River.11 Clashes were inevitable between the Chinese and Japanese fishermen. Because of poor fishing equipment on the Chinese side, bigger Japanese fishing boats usually took better catches. Complaints from the Chinese fishermen were submitted to their government.
In addition, because of the Cold War and the hostility between China and Japan at that time, the two countries did not recognize each other.12 China was not happy to see so many Japanese fishing boats operating along the Chinese coast, and decided to take necessary protective measures for the interests of its own fishermen as well as for the conservation of the fishery resources. The arrest and detention action first started with the seizure of the Japanese fishing boat Dai-Ichi Unzen-Maru on 7 December 1950. As a result, China arrested 158 Japanese fishing boats and 1,919 crew members between December 1950 and July 1954.13
In order to avoid such conflicts and to maintain a normal fishing order in the East China Sea, China and Japan began to discuss the fishery matters. Since there was no official diplomatic tie between the two, the authorized parties for negotiation were non-governmental entities (despite whether it was in the name). In June 1955, a first (non-governmental) fishery agreement was reached between the Japan–China Fisheries Council (originally known as Japan–China Fisheries Enterprise Association) and the China Fisheries Association. From 1955 to 1975 except for the period from June 1958 to November 1963, three non-governmental fishery agreements (1955, 1963, and 1965) were negotiated and implemented, and they played a very critical role in establishing and developing fishery relations between China and Japan.
The non-governmental agreements usually contained the agreements themselves, annexes, and other related documents such as memoranda, and covered the sea areas north of 27°N excluding Chinese coastal waters. Fishing zones (six zones for trawling and three for seine operations) were established by way of limiting the maximum number of fishing boats and fishing seasons. For some areas, the horsepower of fishing boats was also limited. Limitations on the length of fish and the mesh size of fishing nets were imposed. These arrangements were comparable with the Chinese domestic regulations concerning the fisheries in the East China Sea. In June 1955, China promulgated the Order on the Motor Trawl Prohibition Zones in Bohai Sea, the Yellow Sea, and the East China Sea which was designed to change by decree such zones provisionally established in 1950 to be permanent ones.14 The agreement established a joint fishery commission, consisting of three members from each of the two sides, which helped to implement the agreement.15 The total trawl fishery catch under the agreement was 200,000 tons, covering a variety of demersal fish, such as croaker and hairtail, and the number for purse seine catches was 300,000 tons centring on mackerel and jack mackerel.16 What is remarkable in the fishery agreement was the establishment of conservation zones in the East China Sea in the 1950s when sustainable development or other environmental principles had not come into being. It is also remarkable that such conservation zones covered areas in the high seas.
Both sides realized that the non-governmental fishery agreements had limitations in nature and were only implemented provisionally, and expected to conclude an agreement at the governmental level.17 However, such time to have a governmental agreement did not come until the normalization of diplomatic relations between China and Japan in 1972. Following the establishment of diplomatic ties, the two countries started their consultations on a governmental fishery agreement. The Fishery Agreement between the Government of the People’s Republic of China and the Government of Japan was finally signed on 15 August 1975, and came into force on 23 December 1975.18 Meanwhile, the non-governmental agreement was terminated. The 1975 Agreement had been revised twice in 1978 and 1985.19 Although the 1975 agreement introduced more rigid protective measures than the non-governmental agreements, it was largely the same as the non-governmental ones, in which six conservation zones and seven fishing closed zones were established to protect the resources in the East China Sea and the Yellow Sea. Both sides acknowledged that the zones where the agreement applied were part of the high seas. Japanese fishing boats were still permitted to operate along China’s coast, while the Japanese government agreed to require its fishing boats to abide by the protection measures under the Agreement.20
The 1975 Agreement, like the non-governmental agreements, established fishery zones which lie within 182nm from China’s coast both in the East China Sea and the Yellow Sea.21 However, the deterioration of fishery resources has led most of Japanese fishing boats out of the west part of the East China Sea since the end of 1970s. Meanwhile, China’s fishing capacity expanded dramatically in pace with its economic development. Chinese fishermen started to explore the eastern part of the East China Sea, and to catch squid in the Sea of Japan and in the North Pacific areas east of Japan. Under such new circumstances, the Sino-Japanese fishery relations contained new factors: while the 1975 Agreement set forth some restrictive measures on Japanese fishermen, Japan had no such corresponding measures on Chinese fishermen and its restrictions provided in its 1977 Law on Fishery Zone did not apply to Chinese and Korean fishermen.
The entry into force of the LOS Convention in 1994 ushered in a new era of fishery relations between China and Japan. China proclaimed the establishment of its EEZ upon its ratification of the LOS Convention and Japan promulgated its Law on the EEZ and the Continental Shelf in 1996. Since the broadest width of the East China Sea is less than 400nm, the whole sea area becomes EEZs that are shared by China, Japan, and Korea. The fishery relationship between the two sides inevitably needed a new adjustment. Strong voices from fishermen of both sides advocated that their governments should take necessary steps to protect their interests. Japanese fishermen and political bodies pushed their government to seek a solution that could eventually keep Chinese fishermen away from the sea areas on the Japanese side by imposing stricter regulations, whereas Chinese fishermen urged their government to find an arrangement that could maintain their existing fishing grounds in the Japanese EEZ on the grounds that Japan had fished considerably along the Chinese coast since the 1950s.
Legal and environmental challenges
After the adoption of the LOS Convention, the marine legal regime has been changed dramatically. The EEZ regime under the Convention is designed on the one hand to grant the coastal state the sovereign rights to marine resources, and on the other to conserve and manage marine resources in a sustainable manner. For that reason, the LOS Convention contains a number of provisions on the conservation and management of marine living resources including the maximum sustainable catch based on the total allowable yield which is decided by a coastal state on scientific data and other considerations.22 There are two treaty requirements which are particularly important to the management of fisheries in the East China Sea which need unremitting efforts from both China and Japan.
First, the LOS Convention requires its contractual parties to take necessary measures to deal with fish stocks occurring within the EEZs of two or more coastal states or both within the EEZ and in an area beyond and adjacent to it by stipulating that
1 Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.
2 Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area (Art. 63).
From the above provisions, it can be seen that there are three distinctive types of obligations for the conservation and management of transboundary stocks according to the kinds of stocks involved: obligation to cooperate, obligation to enter into negotiations, and obligation to regulate by agreement.23 Though it is not clear how many fish stocks in the East China Sea are transboundary, there must be some which can be categorized under this definition. Pelagic spawning grounds and wintering grounds in the East China Sea encompass the entire offshore.24 Furthermore, the bilateral fishery arrangement between China and Japan is only regarded as a first step of a regional arrangement for the whole East China Sea, and perhaps including the Yellow Sea as well. It is expected that a regional legal arrangement among all the countries concerned in the East China Sea and the Yellow Sea can ideally fulfill the treaty obligations derived from the LOS Convention.
Second, the LOS Convention requires its contractual parties to cooperate between/among themselves when they border the same enclosed or semi-enclosed sea. Accordingly, they should cooperate with each other in the exercise of their rights and in the performance of their duties under the LOS Convention. To this end they should endeavor, directly or through an appropriate regional organization, inter alia, to coordinate the management, conservation, exploration, and exploitation of the living resources of the sea (Art. 123). Thus, fishery management is one of the aspects on which the states bordering a semi-enclosed sea such as the East China Sea can cooperate so as to reach a goal of sustainable development of marine living resources.
The requirements in the LOS Convention are further affirmed in the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the 1995 Agreement) and obliges the contractual parties to take into account the natural characteristics of the semi-enclosed sea and to act in a manner consistent with the relevant provisions of the LOS Convention (Art. 15). In addition, the 1995 Agreement introduced the precautionary principle which is now prevailing in the management of fishery resources worldwide. This principle or approach requires the relevant states to take necessary measures to prevent any adverse impact or threat to the environment or fishery resources, even if risks are not yet certain but only probable.25 According to the 1995 Agreement, the precautionary approach should be applied by the contractual parties by (a) improving decisionmaking for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty; (b) applying the guidelines for the application of precautionary reference points and determining, on the basis of the best scientific information available, stock-specific reference points and the action to be taken if they are exceeded; (c) taking into account uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distribution of fish mortality and the impact of fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic, environmental, and socio-economic conditions; and (d) developing data collection and research programs to assess the impact of fishing on non-target and associated or dependent species and their environment, and adopting plans which are necessary to ensure the conservation of such species and to protect habitats of special concern.26 Both China and Japan signed the 1995 Agreement but have not yet ratified it.27 Nevertheless, some principles and measures stipulated in the 1995 Agreement can be endorsed for the conservation and management of the fishery resources in the East China Sea, particularly in the shared EEZ area between the two countries.
Since the U.N. Conference on Environment and Development (UNCED) at Rio de Janeiro in 1992, international environmental requirements for the members of the world community have been further tightened. The UNCED adopted the Rio Declaration on Environment and Development and Agenda 21. The Rio Declaration contains 27 principles guiding the protection of the global environment as well as the interests of human beings and their future generations.28 Agenda 21 sets out comprehensive strategies and programs for the whole world to counter environmental degradation and promote sustainable development, and contains a whole chapter (Chapter 17) regarding the protection of the oceans including the protection and rational use of the marine living resources.29 As to the sustainable use and conservation of marine living resources under national jurisdiction, states should ensure that such resources in the EEZ or other areas are conserved and managed in accordance with the provisions of the LOS Convention, issues of straddling stocks and highly migratory species are tackled through bilateral and/or multilateral cooperation. Following these environmental requirements, countries have prepared their own agendas 21. China adopted its own Agenda 21 in 1995 and Ocean Agenda 21 in 1996, both of which contain chapters and/or sections dealing with the sustainable management of marine living resources.30
The Food and Agricultural Organization (FAO) is a specialized international organization for the management of global natural resources including fisheries. Under its auspices, many international documents concerning fishery management have been adopted, and the most remarkable one is the Code of Conduct for Responsible Fisheries which was unanimously adopted on 31 October 1995. The Code provides a general framework for national and international efforts to ensure sustainable exploitation of aquatic living resources in harmony with the environment.31 It consists of a collection of principles, goals, and elements for action to guarantee the best possible supplies of fish for future generations. The Code requests countries and all those involved in fisheries and aquaculture to work together for conservation and management of fish resources and their habitats. All people involved in fisheries should strive to maintain or restore fish stocks to levels capable of producing reasonable amounts of catch both now and into the future.32