Fishing for a Grey Zone?



China’s announcement of its annual fishing ban in the northern section of the South China Sea, between May 16 and Aug. 1, is likely to be defied by Vietnam.

Such annual bans have in the past evoked strong Vietnamese protests, and while Hanoi accused China of violating its sovereign rights in the sea outside the Gulf of Tonkin, Vietnamese fishermen have meanwhile opposed the ban and vowed to continue their fishing as usual.

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The defiance of China’s fishing ban is likely to result in the arrest of Vietnamese fishermen and confiscation of their vessels by Chinese authorities, which will in turn lead to renewed tension in the region and damage the efforts of both China and Vietnam to improve their global image.

While a fishing ban during the spawning season is a necessary conservation measure to allow fish to replenish, what has beencontroversial in this area is what China’s fishing ban covers: not only legitimate Chinese areas, but also areas that Vietnam considers to be under its sovereignty and jurisdiction.

The area also involves the Paracels, a group of islands occupied by China, but which are also claimed by Vietnam. As a result, it has been a matter of concern to Vietnam that China’s fishing ban covers areas that would have belonged to Vietnam had a delimitation line been marked in accordance with international law.

But Vietnam faces a policy dilemma as a result of China’s ban. If its fishermen were ordered to refrain from going offshore, Vietnam would be considered as implicitly recognizing China’s sovereignty in the disputed areas. Thus, Vietnam has decided to challenge the fishing ban even though it might be blamed for acting in an environmentally unfriendly way and, arguably, paying little regard to its conservation obligations.

Given its current naval capability, China has no difficulty in unilaterally enforcing the fishing ban. But taking unilateral measures may not be wise for China as the international community has been closely observing its more assertive behaviour in territorial disputes. China’s enforcement of the fishing ban, coupled with harsh measures against Vietnamese fishermen, would only deepen the concern that China is acting more aggressively on territorial issues.

Most importantly, the very purpose of conservation of the fishing ban is defeated by both China and Vietnam’s unilateralism. China’s typical countermeasures of arresting and confiscating fishing vessels don’t deter Vietnamese fishermen, who are backed by their national authorities, much less provide a long-term solution from a conservation perspective.

Of course, the recent China-Vietnam spat over fisheries is hardly unique – such controversies are characteristic of maritime and territorial disputes. Where maritime jurisdictional zones overlap, the United Nations Convention on the Law of the Sea (UNCLOS) provides a solution. Parties to a dispute are to enter into a provisional arrangement of a practical nature, which is without prejudice to the final delimitation.

Among the existing arrangements that states practice is the so-called ‘grey zone’ model, which is the best way of serving conservation purposes. Essentially, this model stipulates that the disputed area – the ‘grey zone’ – is defined and temporarily separated from the maritime zones that apparently belong to only one country under international law. In this gray zone, one country won’t enforce its laws against vessels of the other. However, to ensure sustainable fisheries, the two countries may agree to uniform conservation measures in the gray zone. Such a modus operandi with regard to fisheries in contested waters is possible thanks to the ‘without prejudice’ clause omnipresent in every arrangement.

‘Grey zone’ agreements aren’t alien to China. Indeed, Beijing concluded two agreements of this kind with Japan and South Korea in 1997 and 2000, respectively, to regulate fisheries in their overlapping maritime zones in East Asia. It’s noteworthy that the former arrangement functions successfully even in the waters adjacent to China’s claimed Diaoyu/Senkaku Islands, which Japan presently occupies.

The controversies over the fishing ban have been a recurring, but unaddressed issue in Sino-Vietnamese bilateral relations for more than a decade, despite both having entered into a fisheries cooperation arrangement. In fact, with regard to the Gulf of Tonkin only, China and Vietnam concluded a reciprocal fisheries agreement in 2000 as a complement to their boundary delimitation settlement. This fact, plus the above-mentioned fisheries arrangements in East Asia, makes it hardly conceivable that there is as yet no modus operandi between China and Vietnam regarding fisheries  regulation in the waters outside the Gulf of Tonkin.

The single obstacle to a fisheries arrangement outside the Gulf of Tonkin is the Paracels  – sovereignty of which is disputed by China and Vietnam. The existence of the dispute is both a matter of fact and a matter of law – as China argues in relation to the Diaoyu/Senkaku dispute. It’s on that basis, and with long-term interests in mind, that China and Vietnam should work closely with each other toward a provisional fisheries arrangement.

Such an arrangement shouldn’t compromise the position of either country on the Paracels, and would serve as the most graphic example of how China and Vietnam can engage in a comprehensive strategic cooperation partnership for mutual economic development and regional stability.

Nguyen Dang Thang is a PhD Candidate in the Faculty of Law, University of Cambridge and Associate of the Centre for South China Sea Studies, Diplomatic Academy of Vietnam. This is an edited version of an article that originally published here by Pacific Forum CSIS. The views expressed are the author’s own.

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