Opportunities for fisheries enforcement cooperation in the South China Sea

Abstract

Both as a result of economic pressures to expand fishing grounds beyond coastal waters, and the use of maritime law enforcement agencies and fishermen as state proxies for reinforcing sovereign claims, maritime law enforcement and fishing vessels of different South China Sea actors encounter each other regularly in areas of overlapping claims. These encounters have often resulted in incidents at sea and pose a pressing security problem for the region. UNCLOS obliges states to make efforts to reach “provisional arrangements of a practical nature” when a final delimitation is pending. This article examines four examples of fisheries agreements and fisheries enforcement agreements between China and Japan, Japan and Taiwan, the Philippines and Taiwan, and Malaysia and Indonesia in which disputing parties reached provisional arrangements around the enforcement of fisheries in areas of overlapping claims. The articles discusses several elements across the four agreements that are relevant and practical for the South China Sea context, including the adoption of provisions that grant states a degree of flag state control, the establishment of an institutional body for determining management mechanisms and regular consultations, the establishment of communications channels at the operational level, and flexibility around implementation area. The article proposes the establishment of a jointly-managed Provisional Measures Zone within the “donut hole” of the South China Sea that would serve as a starting point for institutionalized cooperation on maritime law enforcement and fisheries issues, accompanied by a set of provisional bilateral and trilateral fisheries enforcement arrangements for individual disputes.