Fisheries tenure arrangement in China: Legislative ambiguity, judicial settlement conflicts, and the gap in protecting traditional fishers’ rights

Abstract

With fish stocks declining and fishing control improving, the delineation of rights and restrictions over fisheries resources for small-scale fisheries needs to be attached with more attention globally. As China’s social and economic environment changes, Chinese traditional fishers have also been facing growing challenges in maintaining their customary fisheries operation. With this as the core issue to be addressed, this paper examines the legislative status of fisheries tenure rights in China and the judicial opinions on disputes involving overlapping users’ rights to fisheries-related resources. It adopts a qualitative empirical analysis by reviewing two cases between long-practicing fishers and other entities and by generalizing nine other cases with similar factual backgrounds. It finds that the ambiguous tenure rights legislation in China cannot provide a solid basis for Chinese traditional fishers to affect fisheries-related decision-making processes. As a result, Chinese courts give incompatible judgments without sufficient consideration of traditional fishers’ customary tenure rights. A normative analysis of traditional fishers’ tenure arrangement in China is also rendered, mainly by drawing on the guidelines of FAO on sustainable small-scale fisheries. Then, this article provides suggestions for legislative improvement with a human rights dimension, including enhancing traditional fishers’ participation in decision-making processes and strengthening their property rights protection. This article offers a new perspective on the relationship between traditional fishers’ well-being, administrative powers, and legislative and judicial protections.