As part of an effort to manage the South China Sea disputes, the Center for Strategic and International Studies (CSIS) has set up and begun convening a newly-launched South China Sea Expert Working Group that brings together prominent experts on maritime law, international relations, and the marine environment. The objective is for the group to meet regularly to tackle issues it considers necessary for the successful management of the South China Sea disputes and produce blueprints for a path forward on each, with a view to eventually produce a robust model for managing the disputes that would be both legally and politically feasible—in effect, a blueprint for an eventual code of conduct.
Below is the first product of the CSIS Expert Working Group on the South China Sea, which focuses on fisheries and broader environmental management.
The South China Sea is one of the world’s top five most productive fishing zones, accounting for about 12 percent of global fish catch in 2015. More than half of the fishing vessels in the world operate in these waters, employing around 3.7 million people, and likely many more engaged in illegal, unregulated, and unreported fishing. But this vital marine ecosystem is seriously threatened by overfishing encouraged by government subsidies, harmful fishing practices, and, in recent years, large-scale clam harvesting and dredging for island construction.
Total fish stocks in the South China Sea have been depleted by 70-95 percent since the 1950s and catch rates have declined by 66-75 percent over the last 20 years. Giant clam harvesting, dredging, and artificial island building in recent years severely damaged or destroyed over 160 square kilometers, or about 40,000 acres, of coral reefs, which were already declining by 16 percent per decade. The entire South China Sea fishery, which officially employs around 3.7 million people and helps feed hundreds of millions, is now in danger of collapse unless claimants act urgently to arrest the decline.
Article 123 of the United Nations Convention on the Law of the Sea (UNCLOS) mandates that states bordering semi-enclosed seas like the South China Sea are obligated to cooperate in areas that include the protection of the marine environment and management of fish stocks. This is reflective of the deeply interconnected ecologies of semi-enclosed seas, in which currents cycle marine life (and pollution) through the region without regard for national jurisdiction. Moreover, Article 192 of UNCLOS provides a general obligation for states to “protect and preserve the marine environment.” Unlike hydrocarbons, for which exploitation rights are based only upon a state’s entitlement to the continental shelf, the obligation to jointly steward living marine resources makes fisheries management and environmental protection “low hanging fruit” for cooperation in the South China Sea.
An effective system to manage South China Seas fisheries and the environment cannot be based primarily on the overlapping territorial and maritime claims, to which the fish pay no attention. Instead it must be built around the entire marine ecosystem, particularly the reef systems, on which much marine life depends. With political will, it is entirely possible for nations bordering the South China Sea to cooperatively protect these ecosystems and manage fish stocks without prejudice to their overlapping territorial and maritime claims. For instance, the Philippines, whose government is under a strict constitutional requirement to defend the nation’s sovereign rights over its waters and continental shelf, could agree to cooperate on fisheries management in disputed waters under Article 123 of UNCLOS without prejudicing its claims or bestowing legitimacy on the claims of others, and therefore without running afoul of its domestic law.
The international legal obligation to cooperate on fisheries management and the environment is matched by practical necessity. Communities all around the South China Sea are highly dependent on fish stocks for both food security and local livelihoods. Yet the region has seen catch rates plummet in recent years thanks to a combination of overfishing and willful environmental destruction. In the South China Sea, fish may spawn in one nation’s exclusive economic zone (EEZ), live as juveniles in another’s, and spend most of their adult lives in a third. Overfishing or environmental destruction at any point in the chain affects all those who live around the sea. The entire South China Sea is teetering on the edge of a fisheries collapse, and the only way to avoid it is through multilateral cooperation in disputed waters.
To that end, claimants should agree to:
1. Establish a Fishery and Environmental Management Area in the South China Sea with implementation and enforcement drawing from successful precedents including the Great Barrier Reef Marine Park and the OSPAR Convention. This would constitute a series of distinct ecosystem-based fisheries zones covering the reefs that are vital to regional fish stocks, including the Paracel Islands, Spratly Islands, Scarborough Shoal, and Luconia Shoals, as well as the waters between, in which pelagic species are fished.
- This management area would not necessitate a complete ban on fishing. Instead it would consist of a patchwork of tailored fisheries zones. Some of these would be no-catch zones to allow dangerously depleted fisheries to replenish, but in others only certain types of fishing would be restricted, while still others might involve no restrictions at all. See the map below for an example of this type of scheme as applied to the Great Barrier Reef.
- Claimants should publicly agree that involvement in the establishment and enforcement of the management area would be without prejudice to their existing territorial and maritime claims, and could not be construed as recognition of the claims of others.
- Determinations of what types of fishing should be banned or allowed in each area should be made based solely on scientific criteria, such as reef health and importance to migratory fish stocks.
- A multilateral body should be established involving independent experts and officials from relevant fisheries, maritime, and scientific agencies from regional governments to establish the layout of the management area and make regular adjustments.
- All claimants bordering the South China Sea should be involved in the creation and management of the fisheries zones, regardless of the location of their territorial and maritime claims, because all are equally reliant upon a healthy marine ecosystem in this semi-enclosed sea. This means that Brunei, China, Indonesia, Malaysia, the Philippines, Singapore, Taiwan, and Vietnam should all be involved in the scientific research in and mapping of fisheries zones.
- An advisory body on the management of pelagic fish species should be established to include both the South China Sea claimants and Gulf of Thailand littoral countries. The latter need not be involved in the creation of fisheries zones covering reef fish in the South China Sea, but should be consulted regarding zones aimed at managing migratory stocks that travel between the two bodies of water.
2. Split enforcement responsibilities between occupiers and flag states.
- Claimants should bear responsibility for monitoring and interdiction of ships violating the mutually agreed-upon fishing restrictions within 12 nautical miles of outposts they occupy on disputed features AND in areas of the management area within 200 nautical miles of their coastlines. In areas of overlapping jurisdiction, the 12-mile zone around occupied features should take precedence. If two such zones overlap, a median line should be used to separate the two areas of responsibility. These enforcement zones are illustrated in the interactive map below and in the static graphics at the end of this blueprint.
- These jurisdictional zones would not constitute a judgment about sovereignty over occupied features or their legal status (as islands, rocks, low-tide elevations, or submerged features). They also would not prejudice any future delimitation of maritime boundaries.
- Patrol and interdiction of ships violating the mutually agreed-upon fishing restrictions in all other parts of the management area may be undertaken by any claimant. This includes all waters and unoccupied features farther than 200 nautical miles from coastlines. Claimants should seek to coordinate patrols, including with the eventual use of ship-rider agreements, and share maritime domain awareness information in these areas.
- Prosecution of ships from a claimant nation that violate fishing restrictions in the management area should be the responsibility of the flag state. The arresting party should arrange to transfer such vessels and their crew in a timely manner. Prosecution of violators from non-claimant countries should be the responsibility of the arresting party.
3. Agree not to use subsidies to encourage fishing within the already overfished South China Sea.
- All claimants should agree to forego geographically-defined subsidies that might encourage fishing within the management area.
- Claimants should agree that fishermen found to violate the management area’s restrictions would lose access to any existing government subsidy and support programs meant to support the fishing industry.
4. Coordinate efforts to reintroduce giant clams and other threatened species such as sea turtles to depopulated reefs in the South China Sea.
- This effort should be led by a consortium of universities and research organizations, such as those in China and Southeast Asia already engaged in raising giant clams in captivity, with governments providing funding, coordination, and logistical support.
- Each claimant should be responsible for planting clams and reintroducing other species on reefs it currently occupies. Eventually, unoccupied reefs should be repopulated by multinational civilian teams, though in the short- and medium-term priority should be given to reefs near occupied features as they will be much easier to protect from poachers. All claimants should agree that such activities would be undertaken without regard to or prejudice for territorial claims.
5. Avoid activities that damage the marine environment or alter the seabed.
- Claimants should refrain from any intentional destruction of marine habitats, including by dredging, land reclamation, or construction of facilities on unoccupied reefs.
- Claimants should commit to perform and publicly release environmental impact assessments before undertaking construction or renovation work on their occupied features.
6. Cooperate on marine scientific research, which is necessary to assess the health of the maritime environment and effectively implement conservation efforts.
- Claimants should coordinate joint marine scientific research cruises throughout the South China Sea with experts from all claimants invited to participate.
- Each claimant should facilitate visits by experts from other claimant nations to conduct research on islands and reefs that it occupies, with due regard given to the need to restrict access to sensitive military sites. Claimants should all agree that research trips would be organized without prejudice to the outstanding claims of other parties, and that participation would not imply recognition on the part of individual researchers or governments of the claims of the organizer.
- Claimants should host regular scientific workshops supported by all neighboring governments with participation of experts from across the region and beyond.
- Governments should invest, both individually and as a group, in programs to raise public awareness of the importance of and threats to fisheries as a common, renewable resource.
This originally appeared over at the Asia Maritime Transparency Initiative (AMTI) at CSIS, and is republished here with kind permission.