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On Cooperation in Joint Development

A bilateral network of marine protected areas between Vietnam and China: Is it the solution to substitute China’s unilateral ban on fishing in the South China Sea? (Part 1)

Synopsis: The paper supports the establishment of a network to manage bilaterally the marine protected areas (MPA) between China and Vietnam in the eastern part of the South China Sea in a capacity of a solution to substitute China’s annual ban on fishing in the area.

Such a bilateral network, if feasible, not only makes a contribution to maintaining the resources of marine life in the South China Sea, but also to boosting the relations between China and Vietnam, at the same time diminishing the tension in the region. The paper also deals with a number of prospects about the way of forming the network as well as the way of managing the constituents of the network and at the same time considers the claims of overlapping in the area based on the differences in the geographical and biological factors.

By Vũ Hải Đăng

Schulich Law School, Dalhousie University, Canada

Since 1999, China has issued its annual ban on fishing within two or three summer months in the Northwestern part of the South China Sea. In 2011, this ban was put into effect from May 16 to August 1, from Latitude 12° N to the North and Longitude 113° E to the West. Any fishing boat entering this area during the banning time shall have to pay the fines and all the fish and facilities shall be confiscated. According to the Chinese media and scholars, this fishing ban is necessary to protect the sustainability of marine life in the area and stop the overfishing and the initial positive results are made. However, the critics, including those from China, are dubious about the effectiveness of this fishing ban. Moreover, after a long time of temporary suspension due to the ban, the fishing activities will be more diverse, thus enhancing the risk of reducing the fisheries resources.

Another more important issue is that this stipulation is implemented for Vietnamese fishermen fishing in the area Vietnam has claimed its sovereignty. In response to this fishing ban, Vietnam’s relevant agencies such as the Foreign Ministry and the Vietnam Association of Seafood Exporters and Producers (VASEP), have lodged their protests. Especially, the Foreign Ministry Spokesman of Vietnam declared: “China’s unilateral fishing ban in the South China Sea is a violation of Vietnam’s sovereignty in the Hoàng Sa (Paracel) archipelago, the right to sovereignty and jurisdiction in the exclusive economic zone and the continental shelf of Vietnam, a violation of the Declaration of the Conduct of Parties in the South China Sea (DOC) and further complicates the situation in the South China Sea”. This ban is challenged at a similar degree from the Vietnamese fishermen who continue their offshore fishing activities during the effective time of this ban.  As a result, these Vietnamese fishermen were arrested, jailed, beaten and their fish and fishing facilities were confiscated by the Chinese marine law enforcement.

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The area under China’s fishing ban in 2011. The map was drawn by the author, using the soft ware ArcGIS, 2011.

In practice, the issue of conservation and management of marine living resources in a disputed area can be resolved by the conclusion of a fishery agreement between relevant coastal countries. Examples of such agreements include the Convention between Canada and the United States in 1953 (modified by the Protocol of 1979), the Agreement between Sweden and the former-Soviet Union in 1977 and the Agreement between Japan and Russia in 1998. This is also a requirement of articles 74 (3) and 83(3) of the United Nations Convention on the Law of the Sea which ask states, pending a delimitation agreement relating to the exclusive economic zone and continental shelf, to “make every effort to enter into provisional arrangement of a practical a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement”.

However, it is very difficult to have a fishery agreement that covers all the areas where there are overlapping claims between Vietnam and China in the North-Western area of the South China Sea as the disputed status of some portions of this area is already an object of disagreement. For instance, China considers that“there is nothing to negotiate” about the Paracel islands and Vietnam has stated that the waters belonging to its exclusive economic zone and continental shelf, at least in the North-Western area of the South China Sea,are not disputed areas.

This paper advocates for the establishment of a bilateral network of marine protected areas (MPA) between China and Vietnam in the North-Western part of the South China Sea as a potential solution to this dilemma. The author argues that, for the sake of the preservation of marine living resources in the North-Western part of the South China Sea and the maintenance of good relationship between the two countries, instead of taking unilateral measures, China and Vietnam can work together towards establishing a bilateral MPAs network. Certainly a bilateral network of MPAs between Vietnam and China is just a solution to this dilemma but as it is argued later in the paper, taking into consideration of the existing circumstance, it could be a very effective one.

The paper starts by giving some background information relating to protected areas, MPAs and MPAs network to point out what are the ecological, legal and political advantages of a bilateral network of MPAs, over a unilateral fishing ban. It explains then how MPAs network as a tool for marine conservation is supported by international and regional instruments in which both Vietnam and China are participants. After that, the process of establishing a regional network of MPAs is reviewed with the Sulu-Sulawesi Marine Ecoregion as a case study. At the end, the paper provides perspectives on how such a bilateral network of MPAs between Vietnam and China could be implemented, especially considering the existing dispute between two countries in the North-Western South China Sea.

1. Background Relating to MPAs Network

This section explains the background relating to the concept of MPAs network and gives an account on how a bilateral or regional network of MPAs can be established. For instance, it reviews the definitions of relevant concepts such as protected area or MPA, transboundary MPAs and network of MPAs; their different functions and points out different advantages of a bilateral MPAs network compared to a unilateral fishing ban in a common sea. It states equally the criteria, necessary steps and essential factors for the successful establishment and management of a MPAs network, in particular at the regional level.

Definitions

This sub-section defines relevant concepts used in this paper, such as MPAs, network of MPAs and transboundary protected areas:

The most well-known definition of MPAs is proposed by the International Union of the Conservation of the Nature. It defines a protected area in general as “a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values”. This definition is also applicable to MPAs. Under this definition, fishery management areas such as fishery closures or fishery protection zone can only be qualified as MPA if their primary purpose is biodiversity conservation and not fishery management. This position is criticisable as sustainable fisheries also contribute to the protection of the marine resources, in particular of commercially important species. Besides, there is not much difference between a no-take MPA in which fishery is banned and a fishery reserves or fish sanctuary. Under the framework of this paper, a fishery reserve established for sustainable fishery is considered as a MPA.

A network or system of MPAs is defined as “a collection of individual marine protected areas operating cooperatively and synergistically, at various spatial scales, and with a range of protection levels, in order to fulfill ecological aims more effectively and comprehensively than individual sites could alone”. Not just any collection of MPAs can constitute a network but they must be located in critical habitats, containing components of a particular habitat type or portions of different kinds of important habitats and interconnected by the movement of species.

A transboundary protected areas is “an area of land and/or sea that straddles one or more boundaries between states, sub-national units such as provinces and regions, autonomous areas and/or areas beyond limits national sovereignty or jurisdiction, whose constituent parts are, especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, managed co-operatively through legal or other effective means”. When a transboundary protected area is used not only for the purpose of protecting the environment but also the promotion of peace, it is called a park for peace or peace park.

It should be noted that there seems to be confusion between network of protected areas, transboundary network of protected areas and transboundary protected area. For instance, sometimes a transboundary protected area can be used to designate a network or a group of protected areas that is established in the border region and straddlesacross the boundary or frontier. Besides, a transboundary network of protected areas can be used to designate a large network of protected areas which cover more than one country (which is not only limited to their boundary or frontier). To avoid confusion, this paper uses the term of “transboundary network of MPAs” to refer to a network of protected areas that is established in the border region and straddles both sides of the boundary orfrontier, while a regional or bilateral network of protected areas refers to a network which cover the territories of more than one country but not limited to the border region.

Functions of MPAs and MPAs Network

This sub-section explains the functions of MPAs and the rationale for MPAs networking:

MPAs are considered to have generally two major functions. The first one is to provide for the protection of the marine ecosystem by preserving critical habitats and the water quality, safeguarding life-support processes of the sea and preserving sites from human impacts to help them recover from stresses. The second function is to help maintain viable fisheries and rebuild damaged fish stocks. Experiments have shown that species within MPAs have much higher densities, biomass, larger individual mean sizes and greater taxonomic diversity than outside ones. The fisheries in areas outside the MPAs can also benefit from those species moving from the marine protected areas by spill-over effect; however this conceptual assumption is not yet well understood by researchers. Besides, MPAs can play many other important roles such as contributing to, and enhancing tourism and recreation, serving as reference sites in education and scientific research and protect important cultural, historical, spiritual and aesthetic values. Marine peace parks can be developed as a mechanism to help solve border disputes, secure or maintain peace during and after an armed conflict and promote a stable and cooperative relationship between neighboring countries.

Networks of protected areas can have many benefits. They can help ensure the protection of all types of biodiversity, maintain the natural range of species, protect unique, endemic, rare and endangered species spread over a fragmented habitat and protect ecological processesessential for ecosystem functioning and large-scale processes. From a management point of view, networks help ensure social and economic connections between protected areas, bringing sectoral agencies and different stakeholders together, facilitating information sharing and allowing more efficient resources use. They also provide greater flexibility to situate and configure protected areas in ways that maximise positive and avoid negative socioeconomic effects. At the regional level, networks can help protect an ecosystem along with species that cannot be adequately protected in one country and promote cooperation between neighbouring countries to address common issues.

The practice of networking of MPAs is even more critical because of the characteristics of the marine ecosystem. Compared to the terrestrial environment, the sea is relatively open with more organisms dispersing and migrating at various life stages. Changes in marine ecosystems also occur in a shorter scale of time as they are subject to the surrounding medium and respond to forces such as tides or circulation patterns. Marine ecosystems and species are more closely connected in a number of ways such as wave, wind, freshwater inflow or tidal currents. Boundaries in the marine environment are very nebulous both in terms of outer bounds of ecosystems and definable limits of ecological communities and population structure. Furthermore, marine mobile species such as fish, marine mammals and turtles can move in three dimensions and much greater distances than common terrestrial species. Last but not least, marine ecosystems are relatively poorly understood by humans (who are terrestrial by nature) with much shorter history of studying the ocean and more costly expenses for research.

Advantages of a Bilateral Network of MPAs over a Unilateral Fishing Ban

A unilateral fishing ban in an area claimed by more than one country might have a positive result, which is to contribute to the protection of fish resources but its biggest flaw, among others, is to create high tension with the other claimant. Besides, because its legality is protested, people might feel encouraged to ignore the measure, which will jeopardize its wanted effectiveness. Compared to a unilateral fishing ban, a bilateral network of MPAs presents some obvious advantages in all legal, ecological, socio-economic and political perspectives.

From a legal perspective, the establishment of a bilateral network of MPAs is totally in compliance with international law, which asks states to cooperate to protect the common marine environment and transboundary living resources:

  • The United Nations Convention on the Law of the Sea asks states bordering a same marine unit or those which share stocks or stocks of associated species to cooperate for the protection of the marine environment and of these stocks [emphasis added]. For instance, article 123 ask states bordering an enclosed or semi-enclosed sea to endeavour to coordinate, whether directly or through appropriate regional organization in the exploitation, management and conservation of marine living resources and protection and preservation of the marine environment. Article 63 asks relevant coastal states to cooperate in the conservation and development of stocks occurring within their exclusive economic zones and in an area beyond and adjacent to it. Article 66 relating to the conservation, exploitation and management of anadromous stocks asks States of origin these stocks and other states fishing them to “make arrangements” for its implementation.
  • Another international treaty, the Convention on Migratory Species and Wild Animals, also provides for the cooperation within relevant states for the protection of migratory species. Signed in 1979, the Convention‟s objective was to protect migratory species, their habitat and migration routes. For species that need or would significantly benefit from international cooperation for their conservation and management, it asks range states to “take action to conclude agreements for any population or any geographically separate part of the population of any species or lower taxon of wild animals, members of which periodically cross one or more national jurisdictional boundaries”.
  • Besides, the cooperation between states to conserve common marine living resources is also supported by soft law instruments relating to responsible fisheries such as the Code of Conduct for Responsible Fisheries of the Food and Agriculture Organization of the United Nations. The Code was adopted at the 28th FAO Conference on 31 October 1995 for the purpose of providing principles and standards for responsible fisheries practices to ensure the effective development and management of living aquatic resources. Article 7.1.3 of the Code asks relevant states to cooperate to ensure effective cooperation of transboundary, straddling, highly migratory and high sea fish stocks.

From an ecological point of view, MPA and MPAs networks are more comprehensive tools for conservation than fishing bans. An MPA, by definition, can be used not only for the maintenance and rebuilding of fish stocks but also the protection of fragile, rare and critical habitats of the marine environment such as coral reef and seagrass beds (which are also important fish habitats) or the protection of other endangered species. Furthermore, it does not only provide for the protection of the marine environment against fishing activities but also other exploitation of the sea such as shipping or oil and gas exploitation.

From a socio-economic point of view, an MPA is not necessarily a no-take area where all fishing activities are banned. In many MPAs worldwide, some exploitation, in particular traditional fisheries, is still allowed. From this perspective, fishermen livelihoods will be less affected than a complete fishing ban.

From a political perspective, as a network of MPAs is flexible in terms of areas chosen to be protected, issues of sovereignty can be avoided by designating, at least at the beginning of the process, MPAs that are located in non-disputed waters.

(To be continued)

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