5. Perspectives for the establishment of a Bilateral MPAs Network between Vietnam and China
This final section provides some general perspectives about how a bilateral network of MPAs between Vietnam and China might be established and managed, in order to contribute to the preservation ofthe marine living resources of the South China Sea and the maintenance ofa good relationship between the two nations. The specific issues dealt with in this section are the geographical scope of the network, its governing mechanism, joint marine scientific research between Vietnam and China, options for the designation of individual MPAs and the involvement of affected fishermen into the decision-making process.
The Geographical Scope of the Network: the North-Western Part of the South China Sea
To help achieving both the conservation of marine living resources and the preservation of a good relation between Vietnam and China, both ecological and political criteria are important in the determination of the geographical scope of the bilateral network of MPAs. The network should not only be established with a consideration of relevant existing bio-geographical units in the area but also need to include areas where there are overlapping claims between two countries. From this perspective, a bilateral network of MPAs between Vietnam and China should cover and not cover the following:
- The Gulf of Tonkin Marine Ecoregion as it is defined by WWF: according to WWF, a large part of the Gulf of Tonkin is classified as the Gulf of Tonkin Marine Ecoregion, one of the 232 ecoregions in the world.143The ecoregion, defined by the WWF as “areas of relative homogeneous species composition, clearly distinct from adjacent systems”, is the smallest unit in its biogeographical classification used for conservation.144 The Gulf of Tonkin Marine Ecoregion includes coastal waters of the Northern Vietnam and Southern China, waters delimitated by the Agreement of Vietnam and China relating to the Delimitation of the Gulf of Tonkin in 2000145 and the mouth of the Tonkin Gulf still under negotiations for delimitation between two countries.
- All areas that are agreed by China and Vietnam as disputed areas. Currently, only one area can fall into this type, which is the mouth of the Tonkin Gulf that is under delimitation negotiations between two countries. It is already included in the above-mentioned Gulf of Tonkin Marine Ecoregion.
- All areas where there are overlapping claims between two countries, but the status of disputed area is protested by at least one party. Two of such areas can be pointed out: the Paracels islands (of which the disputed area status is contested by China) and part of the exclusive economic zone of Vietnam (of which the disputed area status is contested by Vietnam and other countries)
- Besides, the bilateral network should not cover any area claimed by other countries in the South China Sea. If it does, it will certainly provoke protestation from the relevant country or countries and not help to decrease the tension in the region. For the protection of those areas, a bilateral cooperation is not the solution but a trilateral or multilateral framework should be established.
From a jurisdictional point of view, a bilateral network of MPAs between China and Vietnam should cover three types of areas as following:
- Areas without overlapping claims between the two countries, namely coastal waters of the South-Western region of China and North-Western region of Vietnam and portion of the Gulf of Tonkin which was delimitated;
- Agreed disputed areas, namely the portion of the sea subject to negotiations between Vietnam and China relating to the delimitation of the mouth of the Tonkin Gulf; and
- Areas with overlapping claims but the disputed status is contested by at least one country, namely the Paracels and the portion of the Northern exclusive economic zone of Vietnam.
Governing Mechanism of the Network
A joint mechanism should be established to govern the network of MPAs comprising an equal number of representatives from relevant agencies ofboth countries. Its main functions would include:to determine the objectives of the network; to identify important marine areas in the region that would need to be protectedto achieve those objectives; tosuggest to both governments which conservatives measures to be adopted; and to monitor the achievements of the network. It could also suggest the implementation of cooperative activities between two countries to enhance the effectiveness of the network and resolve disputes relating to it. A model for the joint mechanism for the implementation of the bilateral network of MPAs between Vietnam and Chinacould be theformer Joint Fishery Committee between China and Vietnam in the Gulf of Tonkin, established by the Fisheries Cooperation Agreement in the Gulf of Tonkin, signed between China and Vietnam in 2000.
Implementation of Joint Marine Scientific Research
As stated above, for a MPAs network to be successful, one of the important condition is that it needs to be designed based on best available data and information relating to the geological, oceanographical, ecological, biological, biodiversity and socioeconomic situation of the region.Research is important not only at the beginning stage to identify important areas that need protection but also at the later stage to monitor the effectiveness of the network. For this reason, two countries need to engage in conducting joint marine scientific research in the agreed area.
The cooperation between China and Vietnam in marine scientific research is supported by both the UNCLOS and their bilateral agreement. Article 123 of the UNCLOS stated that states bordering an enclosed or semi-enclosed sea shall endeavour to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area. Besides, article 241 states that marine scientific research activities cannot constitute legal basis for any claim for the marine environment or its resources. Bilaterally, the “common perceptions of the leaders of the two countries in peacefully solving differences on the sea through friendly talks and negotiations”, acknowledged in their joint statements issued during visits of senior leaders, stated that the two sides have agreed to boost cooperation in the fields of, inter alia, oceanography research and environmental protection. Besides, Vietnam and China also agreed to implement surveys in the mouth of the Tonkin Gulf under the framework of the China – Vietnam negotiations relating to the delimitation and joint development in this area. These provisions has been reaffirmed by the recent Vietnam-China Agreement on basic principles guiding the settlement of sea-related issues, signed by representatives of both Governments in Beijing in October 12th 2011 at the occasion of the visit of the Vietnam Communist Party Secretary-General NguyễnPhúTrọng to China.
Lessons for the cooperation in marine scientific research between Vietnam and China can be learned from the Philippines-Vietnam Joint Oceanographic Marine Scientific Research Expedition in the South China Sea programme. This programme was agreed by President Fidel Ramos of the Philippines and President Lê Đức Anh of Vietnam in 1994 and conducted from 1996 to 2007. During these 11 years, four expeditions were organized with as theresult, many data have been collected and analyzed, contributing to further understanding of oceanographic, biological, geological characteristics of the South China and its biodiversity.
Options for the Establishment and Management of Specific MPAs
For the designation and management of specific MPAs, components of the bilateral network, a combined use of MPAs and transboundary MPAs can be considered for the protection the North-West part of the South China Sea depending on which above-mentioned type of area needs protection:
- Areas without overlapping claim should be the easiest ones. Two countries can establish MPAs under their respective national law. The regulations relating to fisheries, shipping, oil and gas exploitation adopted for these MPAs will be enforced by relevant enforcement authorities of each country. MPAs that are located adjacent to the agreed boundary in the Tonkin Gulf can be designated as a single transboundary MPA and managed cooperatively.
- For the agreed disputed area between Vietnam and China, the two countries could consider establishing jointly a transboundary MPA in the disputed area. The establishment and management of such an MPA could be done through a bilateral agreement between China and Vietnam. The two countries could agree on which conservative measures to be adopted for the area and the enforcement of these measures can be ensured by joint patrols of twocountries‟ relevant authorities. If necessary, MPAs could also be created in areas under national jurisdiction of two countries, which are adjacent to the transboundary MPA in the disputed areas to have coordinated management measures.
- Finally, the areas where the disputed status is contested by one party are the most challenging ones as the adoption of any bilateral measure would be considered by the party which contests its disputed status an indirect recognition of the other‟s claim. This challenge can be overcome if two countries have harmonized conservative rules relating to the MPA (which could be accomplished based on the recommendations of the above-mentioned joint governing mechanism of the network) and accept a flag state jurisdiction to enforce them. For instance, if it happens that an MPA is needed for the protection of the Paracels. Vietnam and China could designate a MPA under their national laws respectively at the same location. Since their relevant laws were harmonized, the same conservative measures would be applied to this MPA. Relating to the enforcement of these measures, the two countries could refrain to enforce their national law towards the other‟s vessels but both will have jurisdiction towards vessels from third parties.
Experiences for this type of arrangement can be drawn from some fisheries agreements which are qualified as “grey zone” or “light grey zone” agreements. In those agreements, each participating state agrees to refrain from enforcing its fishery law or regulations against vessels flying the flag or licenced by the other one and both states have jurisdiction towards third-party vessels. The difference between those two types of agreements is that the former ones have a well-defined area of application, meanwhile the latter do not have a clearly determined area for application. NguyễnĐănghas argued that “grey zone” type of fishery agreements is “the most apt in the South China Sea setting” to achieve both objectives of sustainable fisheries and the prevention of tension. However, it is of the opinion of the author of the paper that in areas with overlapping claims where the status of disputed area is contested by at least one party, due to the unclear extent of the claims of the parties, a “light grey zone” agreement might be more suitable.
Involvement of Fishermen in the Decision-Making Process
Another important condition for the successful establishment of any MPAs network is the involvement of relevant stakeholders. Affected stakeholders of the establishment of a specific MPA would depend on which activities conservative measures are adopted for in this area: oil and gas, shipping or fisheries. Most of time, some kind of restriction would be applied to fishing activities in the MPA. In this case, fishermen will need to be allowed to participate into the decision-making process relating to the MPA.
The involvement of fishermen in the process of establishing an MPAs network in the North-West part of the South China Sea may be more complicated due to the sovereignty dispute between two countries. To safeguard the territorial claims, the nationality of the fishermen allowed to participate would need to vary depending on which area the MPA is designated. If the MPA is designated in an area without overlapping claims, only national fishermen of the country having ownership of the area will be involved as fishermen nationals of the other country are not allowed to fish there anyway. If the MPA is designated in an agreed disputed area, fishermen from both countries who used to fish in the area should be allowed to participate to the process. Finally, in case the MPA is designated in areaswhere the disputed status is contested by at least one party and if both countries have flag state jurisdiction, only fishermen nationals of the country designating the MPA will need to be involved as conservative measures adopted in this area will only be enforced to them.
Mechanisms to get affected fishermen to involve in the establishment of an MPA include direct participation or indirectly participating via the designation of community representatives, experts, local government officials or non-governmental organizations.
A bilateral network of MPAs between Vietnam and China in the North – Western part of the South China Sea could bring about many benefits, not only for the two countries in particular but also for the South China Sea region in general. It could very effective tool to preserve the marine living resources in the South China Sea, not only the commercial fishery resources but also important marine habitats and endangered species. It offers opportunities for two countries to cooperate to implement their different international and regional engagements in the area of marine conservation without putting at risk their territorial and sovereignty claims. From this perspective, it couldcontribute to the improvement of the relationship between China and Vietnam and decreasing the tension in the South China Sea.
Certainly, this network cannot solve the territorial dispute between two countries at sea and it does not even have any effect on those issues at all. However, this neutrality can play in its favour as such an endeavour can provide a framework for Vietnam and China to cooperate towards a healthy, productive and sustainable South China Sea without jeopardizing their position relating to their claims. It is actually in total accordance with the spirit of the Vietnam‟s joint development policy and China‟s “shelving disputes, joint development” suggestion.
Finally, this bilateral network of MPAs could be a first step towards and a component of a regional network of MPAs covering the whole South China Sea region. This broader network could provide the chance for a comprehensive protection of the South China Sea and allow the cooperation of all its coastal countries. It could be a good proposal to be implemented under the DOC, after the recent adoption of its Guidelines for the Implementation in Bali last July.
Vu Hai Dang.