An apprehension of fishing vessels is one major trigger in igniting unresolved territorial and maritime disputes; this is evident in the case of South China Sea (SCS). In fact, the ongoing arbitration case initiated by the Philippines against China stemmed from an attempt by the Philippine maritime law enforcement authorities to arrest Chinese fishermen illegally fishing and harvesting prohibited and endangered species, such as corals and giant clams, in Bajo de Masinloc (Scarborough Shoal). This feature is 124 nautical miles west of Zambales, Luzon, and is as well within the Philippine Exclusive Economic Zone (EEZ) and Continental Shelf as last April 2012. There is clearly a need to manage fishing incidents so that they do not adversely affect overall bilateral relations of the countries involved.
Foreign illegal fishing is one major scourge to countries with rich fishing grounds but with little capability to check and deter foreign fishing vessels. Unresolved jurisdictional disputes and the absence of some form of mechanism to monitor and regulate these fishing activities in adjacent shared waters by nearby littoral states complicate the situation. A failure to act upon this threat may lead to over-exploitation of fish stocks, ruining the livelihood of many fishing folks dependent on them. However, active and diligent maritime law enforcement may, on the other hand, lead to diplomatic wrangling with neighbors. In addition, states are under growing domestic pressure to demonstrate tougher positions in protecting maritime sovereign rights for the enjoyment of its citizens. However, this has to be carefully balanced with the need to maintain harmonious ties with neighbors. While this presents a serious dilemma, it is not without solutions. Skillful negotiations and compromise can allow states to avoid the huge costs of fishing incidents to hijack or kidnap overall bilateral relations.
Identifying common ground is an important step in managing fishing incidents in disputed waters. Sustainable use and conservation of the marine environment is an appealing goal that can serve as a foundation for mutual cooperation. However, in recent years this environmental card has been repeatedly used as a tool to advance and reinforce sovereignty claims with states like China, which has imposed fishing bans or closed fishing seasons in SCS without consulting other relevant claimants. Other littoral states are therefore put in an awkward position. While the need for fishing stocks to naturally replenish is well recognized, absent coordination, observing such a fishing ban may amount to recognizing China’s claims. Unilateral fishing bans, therefore, must give way to a more inclusive and consultative framework where concerned marine environment agencies of relevant user states can work together to define the metes and bounds of the fishing season so that general compliance can be ensured. For instance, they can harmonize their fishing seasons in disputed waters and engage in joint policing so no state would be seen as acquiescing to the sovereignty claims of the other. One state may insist on exclusivity based on UNCLOS-defined maritime entitlements, while another may invoke traditional fishing rights, so a workable and mutually acceptable compromise can be devised.
The establishment of an interim Joint Fisheries Agreement (JFA) in disputed waters can be done without touching on the sensitivities of sovereignty; there is abundant existing practice that can be referred to as potential models in this regard. While there are cases wherein a JFA was signed alongside the conclusion of maritime boundary delimitation (MBD), the two do not necessarily have to go hand in hand. A JFA need not be premised on an MBD. An interim JFA can also continue indefinitely as the contracting states decide. The confidence built during the JFA can actually set the tone for a possible MBD in the future. Furthermore, a fisheries agreement does not even have to start on formal official levels. In fact, in the case of China-Japan and China-Korea, private commercial/unofficial fisheries agreements preceded formal state-to-state JFA and it was fisheries interests from both sides that persuaded government to institutionalize the arrangement.
While UNCLOS is seen as partitioning waters and according exclusivity for exploitation of marine resources to certain coastal states, it also contains numerous articles that provide a basis for cooperation for the conservation, management or exploitation of living marine resources in overlapping EEZs – in areas where fish stocks are highly migratory and in the case of enclosed or semi-enclosed seas, such as SCS. As parties to UNCLOS, the Philippines and China, for instance, have the duty and obligation to enter into cooperative arrangements pending final delimitation of their disputed maritime boundaries. Such an agreement benefits fishermen from both sides whose last wish is to get entangled in the simmering jurisdictional disputes as they carry out their livelihood.
In a fisheries agreement, contracting states can jointly determine what fisheries species can be harvested and what fishing practices can be deemed destructive or unsustainable. The Philippines and China, for instance, both have domestic fisheries laws that outlaw the capture of endangered living marine species. The two states are also parties to such international agreements as the Convention on the International Trade of Endangered Species (CITES) and Convention on Biological Diversity (CBD), among others. From this, they can draw the foundation for outlining what constitutes species under protection and what can be considered as prohibited fishing practices. The absence of a common understanding on this matter can be exploited by poachers and illegal marine wildlife traders to the detriment of the environment.
As unilateral enforcement especially in disputed waters often evokes protests by other disputants, there is value in consultation and coordination. Interim measures, such as joint enforcement, can be done. The U.S. and China Coast Guards, for instance, had been coordinating actions to interdict vessels engaged in illegal fishing in the North Pacific Ocean. In the event that one state’s maritime law enforcement agency arrested the fishermen of the other state, the former, through channels, can communicate the matter to the latter and then handover the evidence gathered and transfer custody. The latter can then update the former about the actions it had taken relevant to the case. This setup is not something unprecedented.
While the above-mentioned coordination will work best given formal institutional mechanisms, its absence is not an effective hindrance. The Philippines and China can adopt informal mechanisms which can even serve as the bedrock for more robust cooperation especially if it gained traction and there is enough buy-in from both sides. A fishery hotline, like the one in existence between China and Vietnam over the Beibu (Tonkin) Gulf, for instance, can be established. To avoid the complication of third party involvement, the Philippines and China, can also initially pilot such coordination in waters that only both of them dispute.
Territorial and maritime disputes have always been an irritant in the relations between neighbors fueling tensions and anxieties. Fishing incidents constitute one potential trigger in igniting such disputes. While an enduring resolution is a shared aspiration, the reality is that such solution takes time, maturity, readiness to meet half way and an atmosphere of mutual trust and confidence. Engaging in discussions to manage fishing incidents should be anchored on recognition that the costs of failure to manage such disputes goes beyond the fisheries sector.