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Fisheries Co-operation in the South China Sea and the (Ir)relevanceof the Sovereignty Question

Published online by Cambridge University Press:  04 November 2011

NGUYEN DANG Thang
NGUYEN DANG Thang*
Affiliation:
University of Cambridge, United Kingdom
*
thang.nguyendang@yahoo.co.uk
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Abstract

Joint petroleum development has often been considered as a viable solution to theseemingly intractable Spratly Islands dispute in the South China Sea (SCS). Thisis, however, more easily said than done. On the other hand, little attention ispaid to fisheries co-operation in the SCS despite the fact that fisheriesconstitute an important part in the economies of coastal states. The presentlaissez-faire approach to fisheries in the disputed area gives rise to frictionand tension. By highlighting the salient features of existing fisheries’co-operative arrangements in the world, this article demonstrates the merits ofa fisheries arrangement in the SCS. It also argues that fisheries co-operation,as a low-profile undertaking, is probably easier to achieve than joint petroleumdevelopment. A fisheries arrangement would serve the immediate interests ofparties to the Spratly Islands dispute and may pave the way for their futurehigh-profile co-operation, i.e. joint petroleum development.

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Articles
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Asian Journal of International Law , Volume 2 , Issue 1 , January 2012, pp. 59 - 88
Copyright
Copyright © Asian Journal of International Law 2011

The South China Sea (SCS), the second largest semi-enclosed sea in the world, has long been fraught with complicated maritime and territorial disputes, the most notorious of which is the dispute over the sovereignty of the Spratly Islands. The Spratly Islands are a group of hundreds of islandsFootnote 1 and are claimed, in whole or in part, by five states or six parties, namely Brunei, China, Malaysia, the Philippines, Chinese Taipei (Taiwan),Footnote 2 and Vietnam. The protracted dispute over the sovereignty of the Spratly Islands gives rise to a tangled web of national maritime zones abutting this group of islands in the centre of the SCS, which boasts valuable living resources and speculatively contains a large amount of oil and gas.Footnote 3

The seemingly intractable sovereignty dispute over the Spratly Islands and its related maritime boundaries disputes have given rise to a rich literature on the SCS and the Spratly Islands. As it is crystal clear that there is no immediate settlement of the sovereignty question in prospect, the solution most frequently suggested so far is that states should embark on a joint petroleum development scheme or schemes according to which claimant states will put aside their territorial claims to engage in a co-operative undertaking in the exploration and exploitation of hydrocarbon resources.Footnote 4 On the face of it, such a solution is attractive, apparently given the increasing energy demand of countries in the region and the ostensible lure of the oil and gas potential of the SCS. In fact, there was high hope for such a solution with the conclusion of the Joint Marine Seismic Undertaking (JMSU) between the national oil companies of China, the Philippines, and Vietnam in 2005. But the enthusiasm soon subsided when what was once hailed as a “historic event” or “a breakthrough” in the co-operation among the parties to the Spratly Islands disputeFootnote 5 ended in oblivion.Footnote 6

On the other hand, inadequate attention has been paid to the question of fisheriesFootnote 7 in comparison with the joint development of petroleum resources. This is unfortunate given the fact that living resources in the SCS are widely recognized to be abundant as opposed to the speculative “best guesstimates” of petroleum resources. Fisheries issues in the SCS should have received more scholarly attention as they can be paradoxically a source of both political tension and revenue for economic development. This article hopes to make one attempt to remedy this omission. To that end, the article is structured in four parts. Part I presents certain factual elements relating to fisheries in the SCS to set the context for the discussion. Part II discusses the principles in the United Nations Convention on the Law of the Sea (UNCLOS)Footnote 8 that are relevant to fisheries issues in the SCS. Part III highlights some salient features of the existing fisheries arrangements in disputed areas. Some observations on the appropriate fisheries arrangement in the SCS and the merits of embarking on fisheries co-operation in the SCS are made in Part IV, which is followed by a conclusion.

It is appropriate, by way of introduction, to make some caveats with regard to the present discussion. First, given the limited space, the article does not discuss the arguments of the parties to the Spratly Islands dispute;Footnote 9 nor does it explore the possible venues and mechanisms to settle the dispute. Second, the study is based on the premise that some features of the Spratly Islands satisfy the requirements of Article 121 UNCLOS to have their own exclusive economic zone and continental shelf, thus leaving no high seas in the SCS, or at least in the waters in and around the Spratly Islands. In fact, it is perfectly plausible to make such an argumentFootnote 10 given the open texture of Article 121,Footnote 11 under which contradictory interpretations are tenable.Footnote 12 Most importantly, it is politically improbable that all the parties to the Spratly Islands dispute will limit the potential maritime zones of the Islands and leave the rest of the SCS as the high seas,Footnote 13 given that the real interest behind ownership of these Islands is marine resources.Footnote 14

I. The factual background

Factual elements relevant to a discussion on fisheries in the SCS include the biological characteristics of the SCS, the socioeconomic significance of fisheries in the SCS region, and the political climate of the region.

Biologically speaking, the SCS, flushed by several large rivers, is considered as one of the world's most productive fishing grounds.Footnote 15 It is noteworthy that most of the fishery resources in the SCS are either highly migratory or transboundary stocks,Footnote 16 such as scad, mackerel, and tuna.Footnote 17 These species are also the common commercial stocks,Footnote 18 with tuna being the most valuable and sought-after species in and around the SCS.Footnote 19

The socioeconomic importance of fisheries to the East Asian countries, particularly the parties to the Spratly Islands dispute,Footnote 20 cannot be overestimated. In fact, fish has been, and continues, providing an important source of protein for countries in the region.Footnote 21 The already high annual per capita fish consumption in China and Southeast Asia is estimated to increase from 33.6 million and 18 million tons in 2005 by 4.5−5.5 million and 3 million tonnes respectively by 2015.Footnote 22 Fisheries have always been of great social importance to the East Asian countries, creating jobs for a large portion of the population living in the coastal subregion. Economically speaking, fishery exports are an important source of foreign currency for coastal states (see Tables 1 and 2).

Table 1

Marine fish capture production (in tonnes) in marine areas of six parties to the Spratly Islands dispute in comparison with Asia and the world between 2000−2008.Footnote 1

1 Compiled from Global Capture Production 1950–2008, online: http://www.fao.org/fishery/statistics/global-production/query/en, query made on 15 July 2010. nb: “F” means FAO estimate from available source of international or calculation based on specific assumptions.

Table 2

Export value (in thousand US$) of six parties to the Spratly Islands dispute in comparison with Asia and the world between 2000−2006.Footnote 2

2 Compiled from Commodities 1976–2006, online: http://www.fao.org/fishery/statistics/global-commodities-production/query/en, query made on 15 July 2010.

In 2002, the Association of South-East Asian Nations (ASEAN) and China signed the Declaration on the Conduct of Parties in the SCSFootnote 23 with a view to enhancing peace, stability, economic growth, and prosperity in the region.Footnote 24 China also acceded to the Treaty of Amity and Co-operation one year later.Footnote 25 The overall political atmosphere for co-operation between ASEAN member countries and China now seems more favourable than ever. However, friction may wax and wane but it never ceases.

The waters around the Spratly Islands, given their abundant fishing resources, have long been traditional fishing grounds for fishermen from China, Chinese Taipei (Taiwan), Vietnam, Malaysia, and the Philippines. It is not surprising that skirmishes have occurred between these fishermen. On the other hand, just as in other marine disputed areas, the parties to the Spratly Islands dispute are trying to enforce laws and regulations in the Spratly Islands areas which they consider to be under their jurisdiction. These enforcement activities have sometimes given rise to violent incidents, involving excessive use of force and resulting in casualties.Footnote 26 More frequent is the arrest of fishermen from other states,Footnote 27 not necessarily parties to the Spratly Islands dispute.Footnote 28 Such arrests are themselves a source of diplomatic controversies.Footnote 29 Worse still, they elicit retaliatory measures by other parties, which in turn may cause more controversies and tensions in the SCS as shown by the string of events in early 2010. These events concerned the Chinese decision to regularly dispatch patrol vessels to the SCS in order to protect and assist its fishing vessels against continued arrest and other types of harassment by other countries.Footnote 30 From the very first dispatch by Chinese authorities in April 2010,Footnote 31 Vietnam voiced a strong protest, considering it a violation of Vietnam's sovereignty over the Spratly Islands.Footnote 32 More dramatic is the scenario from the other side of the SCS, where Chinese patrol vessels met with confrontation from the Malaysian navy in the waters claimed by the latter.Footnote 33

It is noted that fisheries incidents are not related only to waters in the Spratly Islands area. In the absence of an agreement on the geographical extent of the Spratly Islands and their maritime zones, the national jurisdiction zones of coastal states abutting the Spratly Islands are not clearly delimited. As a consequence, fishermen of one country sometimes unknowingly operate in areas that unquestionably belong to another state.

The present state of affairs not surprisingly gives rise to unsustainable fishing practices.Footnote 34 Indeed, depletion has been witnessed from the declining yields of some important fish stocks in the region.Footnote 35 Though such depletion occurs as a result of various factors, it is no exaggeration to say that overexploitation is one of the main reasons. Indeed, marine scientific research in part of the SCSFootnote 36 has revealed evidence of such overexploitation.Footnote 37 Philippine and Vietnamese scientists, based on the results of their joint marine scientific research expeditions in the SCS over a decade, note that most of the fish and marine organisms have started to disappear in the Spratly Islands area.Footnote 38

II. The legal framework governing fisheries in the SCS

UNCLOS provides the legal framework for coastal states’ management of fisheries. All but one of the parties to the Spratly Islands dispute are parties to the Convention and hence are bound by its provisions. The exception is Taiwan, which is not recognized as a state and therefore technically cannot participate in the Convention.Footnote 39 Nevertheless, Taiwan is bound by those provisions of UNCLOS which are considered reflective of customary international law.Footnote 40 The fisheries regime of UNCLOS relevant in this context is the coastal state's sovereign rights in the exclusive economic zone (EEZ),Footnote 41 and it is useful to look into UNCLOS provisionsFootnote 42 which are applicable to the management of fisheries in the SCS.

In the EEZ, the coastal state has “sovereign rights for the purpose of exploring and exploiting, conserving and managing”, inter alia, the living resources.Footnote 43 The coastal state, however, does not enjoy unfettered rights in exploring and exploiting the living resources within its EEZ but has to fulfil a number of duties. The overarching core obligations in respect of fisheries management in the EEZ are contained in Articles 61 and 62 of UNCLOS, which are arguably part of customary international law.Footnote 44 The former generally imposes on the coastal state the obligation to establish the allowable catch for each stock within its EEZFootnote 45 as well as to take conservation and management measures so that the living resources are not endangered by overexploitation,Footnote 46 and that the population of harvested species is maintained and restored at levels which can produce the maximum sustainable yield.Footnote 47 The latter requires the coastal state to promote the objective of optimum utilization of the living resources in its EEZ.Footnote 48

In addition to the above “unilateral measures” to be adopted by the coastal state, UNCLOS also envisages separate co-operative regimes for different stocks traversing several maritime zones. The rationale for these regimes is the fact that fish are, by their nature, mobile and do not respect national boundaries. It follows that the conservation and development of fish stocks is only effective through co-operation among the states concerned. Relevant to the discussion here is the obligation in respect of the so-called “transboundary” fish stocks,Footnote 49 stipulated in Article 63(1) of UNCLOS. Article 63(1) reads:

Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.

As seen from the biological characters of the SCS, many high-landing stocks, such as tuna, are transboundary. Thus, assuming arguendo that all national jurisdictional zones in the SCS are delimited, the coastal states bordering the SCS are still under an obligation to conserve and develop transboundary stocks as stipulated in Article 63(1) of UNCLOS.

What is the nature of this obligation, then? It is submitted that the wording of Article 63(1) suggests that no “imperative” is intended with regard to the agreement on the measures to conserve and develop the transboundary stocks. Though the word “shall” denotes “imperative duties and obligations, positive or negative”,Footnote 50 the word “seek” very much waters down the “obligatory nature” in that provision. The travaux préparatoires of the Convention supports this interpretation. It is recalled that an informal proposal by Argentina to replace the word “seek” with the phrase “be obliged” in the draft provision corresponding to the present Article 63(1) at the Eighth Session in 1979 of the Third United Nations Conference on the Law of the Sea (UNCLOS III) was rejected.Footnote 51 Thus, the obligation under Article 63(1) of UNCLOS is in fact an obligation to negotiate in good faith, the so-called pactum de negotiando.Footnote 52 The legal implications of this obligation to negotiate will be dealt with later. Suffice it to say that, with regard to transboundary stocks, which are also one type of shared natural resources, the obligation to negotiate is arguably an obligation under customary international law, which stems from a duty to take into account another state's interests in exploiting such resources.Footnote 53

That being said, it should be noted that Article 63(1) is only a brief provision and nothing further is said about what are the possible conservation and development measures with regard to transboundary fish stocks. It is noted that the conservation and development measures applied to transboundary stocks are without prejudice to other provisions of Part V on the EEZ. This provision is interpreted as relating to the conservation duties under Articles 61 and 62 of UNCLOS.Footnote 54 In other words, the conservation and development measures under Articles 61 and 62 are also applicable with regard to transboundary stocks. Furthermore, in combining with the obligation not to endanger a given stock by overexploitation, the word “development” in Article 63(1) suggests a long-term strategy of maintaining the stock as a viable resource.Footnote 55

There is another provision in UNCLOS that is applicable to fisheries management in the SCS, that is Article 74(3). This provision strictly does not address fisheries but the conduct of states in undelimited EEZs in general. Before discussing Article 74(3), it should be noted that Article 74(3) in particular and Article 74 in general share the same drafting history with their counterparts in Part VI on the continental shelf of UNCLOS, i.e. Articles 83(3) and 83 respectively.Footnote 56 As such, it is permissible to cross-reference the obligations under the latter in the discussion of the former.Footnote 57

The crux of the obligations under the common paragraph 3 of Articles 74 and 83 is pronounced in the first sentence,Footnote 58 which reads as follows:

Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.

The word “shall” again indicates the duties of states “pending agreement” on delimitation,Footnote 59 though the phrase “make every effort” may, as rightly pointed out by Nandan, Rosenne, and Grandy, “leave room for interpretation by the States concerned, or by any dispute settlement body”.Footnote 60 It is generally agreed that the quoted sentence contains two separate obligations, namely the duty to “make every effort to enter into provisional arrangements of a practical nature” and the duty to “make every effort … not to jeopardize or hamper the reaching of the final agreement”.Footnote 61 The first obligation is again a pactum de negotiando,Footnote 62 which will be discussed later.Footnote 63

The second obligation, i.e. the duty to “make every effort … not to jeopardize or hamper the reaching of the final agreement”, is also known as the duty of mutual restraint.Footnote 64 This duty of mutual restraint should not be equated with an absolute moratorium on all activities in the disputed area.Footnote 65 The drafting history of the common paragraph 3 of Articles 74 and 83 shows that the proposals for a moratorium on economic activities in overlapping maritime zones never acquired consensus.Footnote 66 In fact, an absolute moratorium is unreasonable given the fact that the very idea of the EEZ and the continental shelf is resource exploitation, and that maritime delimitation is not a matter that can be resolved overnight.Footnote 67 Furthermore, a rule on a moratorium would be dangerous as it could be abused by a state acting in bad faith to make an extravagant claim in defining the overlapping area with a view to getting the other state to make greater concession in the final delimitation solution.Footnote 68 On other hand, under this duty, certain activities are expressly excluded from the disputed areas because these activities “jeopardize or hamper the reaching of the final agreement”.

But common paragraph 3 of Articles 74 and 83 stops short of explaining what kind of activity might fall into the prohibited category. Nor is there any indication about the possible basis for determining whether or not a particular activity may hamper or jeopardize the reaching of the final agreement. The jurisprudence of international courts and tribunals is most instructive in this regard.Footnote 69 The issue was addressed for the first time in the Guyana/Suriname Arbitration.Footnote 70

In the Guyana/Suriname Arbitration, the Arbitral Tribunal was requested by Suriname to determine that Guyana had breached its legal obligations not to jeopardize and hamper the reaching of a maritime boundary agreement under common paragraph 3 of Articles 74 and 83 of UNCLOS by authorizing its concession holder to drill an exploratory well in the disputed area.Footnote 71 In entertaining Suriname's submission, the Tribunal confirmed that the obligation of mutual restraint is not intended to exclude all activities in a disputed area.Footnote 72 In the context of hydrocarbon exploration and exploitation, there is, in the Tribunal's opinion, a substantive legal difference between exploitation activities and exploratory drilling on the one hand, and certain other exploration activities, notably seismic testing, on the other.Footnote 73 The difference hinges on the fact that the former cause permanent physical change to the marine environment while the latter do not.Footnote 74 On the basis of assessing how the activity in question impacts on the marine environment, the Tribunal could determine whether or not a particular activity was consistent with the duty under common paragraph 3 of Articles 74 and 83. In particular, those activities which do not lead to a permanent physical change are not considered as jeopardizing or hampering the reaching of a final agreement and hence it is permissible to conduct them unilaterally.Footnote 75 By contrast, activities which lead to permanent physical change are considered as jeopardizing or hampering the reaching of a final agreement and can only be conducted pursuant to an agreement between the parties.Footnote 76 The rationale for making such a determination on the basis of whether or not permanent change occurs is that a permanent change to the marine environment by the unilateral act of one party may have an impact on “the other party's rights in a permanent manner”.Footnote 77

But the above ruling was rendered in the context of petroleum exploration and exploitation where it is fairly easy to ascertain when the seabed is physically changed. The situation is different with regard to living resources as their renewable character makes it difficult to measure a change. The renewable character of the living resources also appears to tilt the mutual restraint duty toward a non-prohibition of fishing in disputed areas.Footnote 78 On the face of it, the International Court of Justice's (ICJ) dictum in the Icelandic Fisheries Jurisdiction cases appeared to support the proposition that fishing is permissible in disputed waters when the Court indicated as a provisional measure that the UK and Germany could continue to fish in Iceland's claimed exclusive fishing zone to which the UK and Germany objected. But closer reading of the judgment reveals that the Court also imposed a catch limitation upon the UK and GermanyFootnote 79 to take into account the need to conserve the fish stocks in the area under dispute given Iceland's exceptional dependency upon coastal fisheries for its livelihood and economic development.Footnote 80 Thus, a contrario, the Court in the Icelandic Fisheries Jurisdiction cases did imply that fishing activity at a certain level in the disputed area might impair the respective rights of the states concerned.Footnote 81 In a different context, but with similar effect, the International Tribunal for the Law of the Sea in the Southern Bluefin Tuna cases also used the catch limitations as a measure to halt the depletion of the southern bluefin tuna stock,Footnote 82 which was presumably to protect the rights claimed by Australia and New Zealand.Footnote 83 In the light of these dicta, it could be argued that states do not enjoy unfettered rights to exploit living resources in disputed waters. In fact, the renewable and non-renewable distinction between living and non-living resources is a matter of degree if one regards the different levels of fish catch as corresponding to the various phases in a petroleum exploration and exploitation continuum. It is now widely recognized that unsustainable overfishing can cause stock to deplete and consequently to collapse,Footnote 84 which is arguably equal to permanent damage to the seabed. Thus, the standard of the Guyana/Suriname Arbitration can be applied, according to which unsustainable overfishing can be considered as hampering or jeopardizing the reaching of the final agreement. At the end of the day, what amounts to unsustainable overfishing and constitutes a breach of the duty of mutual restraint is a scientific question. In the case of the SCS, if the conclusion by the Vietnamese and Philippine scientists regarding the depletion of fish stocks in the SCS were correct, it could be argued that the parties having their vessels fish in the SCS were in breach of their obligation not to hamper or jeopardize the reaching of final agreement.

It is worth emphasizing another aspect of the duty of mutual restraint. This duty generally operates to circumscribe activities that are conducted in the disputed area. Exploration and exploitation are, by the economic nature of the area involved, the most popular but not the sole activities conducted by the parties to the dispute. The duty of mutual restraint also applies to another type of activity common in disputed maritime zones, that is, enforcement activities. The claimant states, more often than not, try to enforce their laws and regulations in the disputed area in order to bolster their claims. Law enforcement in disputed waters is a neglected issue in the law of the sea scholarshipFootnote 85 and there is no immediate answer to the question of whether or not it is permissible for states to undertake enforcement measures in the disputed areas.Footnote 86 It is true that the ICJ ruled that Iceland should refrain from applying administrative, judicial, or other sanctions, or any other measures against ships registered in the United Kingdom and Germany, their crews, or other related persons, because of their having engaged in fishing activities in the waters around Iceland outside the twelve-mile fishery zone.Footnote 87 But that order of the Court must be read in its historical circumstances. The case was brought to the Court at a critical moment in the development of the law of the sea, when the limit of a coastal state's rights to the marine living resources beyond twelve nautical miles of the territorial sea was still controversial. It is also observed, at least with hindsight, that the Court ordered such a provisional measure on the basis of anticipating its judgment on the meritsFootnote 88 that Icelandic regulations were not adverse to the United Kingdom and Germany.Footnote 89 The fundamental principle governing enforcement jurisdiction is that states cannot enforce law in the territory of another state without the consent of the latter,Footnote 90 and that enforcement activities, given jurisdiction is territorial, are limited to the territory of the state concerned unless an international law rule provides otherwise.Footnote 91 Though the limits of national maritime zones are now clearly determined by UNCLOS, the Convention itself lacks a compulsory mechanism to enforce those limits.Footnote 92 It is unreasonable to expect states to refrain from exercising their jurisdiction in the disputed area in the absence of a conventional rule to the contrary.Footnote 93

On the other hand, enforcement action, regardless of its place, is subject to certain limits. The most important relates to the limit on the use of force in enforcement measures. Use of force is not ruled out in enforcement activities, but it is exceptional. The Guyana/Suriname Arbitral Tribunal, relying on previous cases, opined that “in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary”.Footnote 94 And, in using force in law enforcement activities, “[c]onsiderations of humanity must apply in the law of the sea, as they do in other areas of international law”.Footnote 95 These considerations dictate that “all efforts should be made to ensure that life is not endangered”.Footnote 96 Furthermore, force used in law enforcement activities is different from military action, which constitutes a threat of use of force in contravention of the United Nations Charter, UNCLOS, and general international law.Footnote 97 Such a threat of force in disputed areas is also considered as “jeopardizing the reaching of a final delimitation agreement”Footnote 98 and hence violates the duty of “mutual restraint”. In the case of the SCS, it is clear that violent actions resulting in casualties, as in the past, were a breach of the duty of mutual restraint. Confrontation between the navies of the parties to the Spratly Islands dispute may amount to a threat of the use of force, thus also violating the duty of mutual restraint under Articles 74(3) and 83(3) of UNCLOS.

It is now appropriate to return to the common pactum de negotiando of Article 63(1) and Articles 74(3) and 83(3) mentioned earlier. This obligation, according to McNair, is a valid one and a refusal to perform it amounts to a breach of the obligation.Footnote 99 The existence of this obligation in international law was confirmed in the Lake Lanoux Arbitration:

[O]ne speaks, although often inaccurately, of the “obligation of negotiating an agreement”. In reality engagements thus undertaken by States take very diverse forms and have a scope which varies according to the manner in which they are defined and according to the procedures intended for their execution; but the reality of the obligations thus undertaken is incontestable and sanctions can be applied in the event, for example, of an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusal to take into consideration adverse proposals or interests, and, more generally, in cases of the violation of the rules of good faith.Footnote 100

The main tenet of this obligation is that it entails an obligation to negotiate “in good faith”. The obligation to negotiate in “good faith” does not require the conclusion of a treaty.Footnote 101 As the Permanent Court of International Justice opined in Railway Traffic between Lithuania and Poland, “[t]he obligation to seek agreement in good faith does not entail a duty to agree at all costs”.Footnote 102 On the other hand, as good faithFootnote 103 “consists in a sincere and honest desire, as evidenced by genuine efforts, to fulfil the substance of the mutual agreement”,Footnote 104 the obligation is not without legal substance. At first, it presupposes that states concerned must make genuine attempts to negotiate.Footnote 105 A refusal by one party to enter into negotiation at the invitation of the other party can be considered a breach of this obligation.Footnote 106 As stated by the Arbitral Tribunal in the Lake Lanoux Arbitration:

International practice reflects the conviction that States ought to strive to conclude agreements: there would thus appear to be an obligation to accept in good faith all communications and contacts which could, by broad comparison of interests and by reciprocal good will, provide States with the best conditions for concluding agreements.Footnote 107

Moreover, the obligation to negotiate in good faith requires the parties to make concessions from their original negotiating positions. The ICJ in the North Sea Continental Shelf cases made this point clearly:

[T]he parties are under an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when one of them insisted upon its own position without contemplating any modification of it. Footnote 108

This obligation is particularly important and clearly enhances the chance of a successful conclusion of negotiations. In the context of the negotiation for a provisional arrangement in a disputed maritime area, the principle of “good faith” and consequently the obligation of making concessions imply that parties to the disputes moderate their claims. In other words, the parties are required to take “a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in the pursuit of a provisional arrangement”.Footnote 109

Though the duty to negotiate is a true legal obligation, it is submitted that both paragraph 1 of Article 63 and common paragraph 3 of Articles 74 and 84 are very brief and provide little guidance as to the required contents of agreements concluded thereunder. It is suggested that we look into state practice to ascertain how states discharge the duty to negotiate, especially in the context of disputed areas. Indeed, subsequent state practice is considered as providing “the best and most reliable evidence … as to what [the] correct interpretation is”.Footnote 110

III. State practice in managing fisheries in disputed areas: some salient features of the existing agreements

This section examines agreements relating to fisheries in disputed areas since they are directly relevant to our discussion here.Footnote 111 But it is not intended to present here a full account of the existing agreements.Footnote 112 Such an exercise is neither possible, given the limited space of this article, nor desirable for the present purposes. A more useful exercise is to highlight some salient features of the existing agreements from which lessons may be drawn for the SCS.

Existing arrangements on fisheries in disputed areas, diverse as they are, can broadly be grouped into four categories, namely “provisional fisheries boundary”,Footnote 113 “grey zone”, “light grey zone”, and “white zone”.Footnote 114 All these categories share one common denominator, which is the hallmark of a provisional arrangement of a practical nature, that is, the “without prejudice clause”.Footnote 115 The effect of the without prejudice clause is to prevent the creation of “acquired rights” after the termination of the arrangement.Footnote 116 This is in line with the second sentence in the common paragraph 3 of Articles 74 and 83 which states the provisional arrangement “shall be without prejudice to the final delimitation”. The “without prejudice clause” is the cornerstone of each and every provisional arrangement for, without it, parties will lack confidence in embarking on any co-operative scheme pending the settlement of their dispute.Footnote 117

A related question is the relationship between fishing activities carried out under a fishery agreement and the sovereignty of an island lying within the application area of that agreement. The dictum of the ICJ in the Minquiers and Ecrehos caseFootnote 118 is instructive in this regard. In that case, the ICJ, given the absence of any specific reference in the treaty relied on by France, declined to uphold the French argument that the common fishery regime established between France and the United Kingdom involved the common use of the islands and rocks in dispute.Footnote 119 The Court further opined that the common fishery zone did not have the effect of precluding the parties from relying on subsequent acts to exercise sovereignty over the islets.Footnote 120 Thus, no presumption of a condominium or joint ownership as a solution to the territorial sovereignty over disputed islands should be made from a functional fisheries co-operation arrangement, much less with the “without prejudice clause”.Footnote 121

The first type of provisional arrangement is that establishing provisional boundaries for fisheries in undelimited areas. The most notable example of this type is the agreement between Australia and Indonesia in 1981,Footnote 122 under which each country would refrain from surveillance and enforcement action with regard to swimming fishFootnote 123 beyond a Provisional Fisheries Surveillance and Enforcement Line defined by specific co-ordinates.Footnote 124 The provisional surveillance and enforcement line arguably functions as a de facto EEZ boundary and fisheries management in the disputed area is as straightforward as in the delimited area. That the surveillance and enforcement line is a de facto but not a de jure boundary is because of the “without prejudice clause”.Footnote 125 However, given the impossibility of drawing a provisional line in the SCS, as explained in Part IV, this type of agreement should not detain us any further.

More complicated are the other three categories of fisheries arrangements, namely the “grey zone”, “white zone”, and “light grey zone” agreements. Grey zone agreementsFootnote 126 hold where there is some agreement on management and enforcement co-ordination with regard to fisheries in the disputed areas.Footnote 127 By contrast, under the white zone agreements,Footnote 128 parties refrain from extending their jurisdiction into the disputed areas and enforcing fishing laws and regulations therein.Footnote 129 The term “light grey zone” was coined by Churchill to refer to a class of agreements with two characteristics: first, the agreements apply either to an area larger than the disputed area or to no very precisely defined area; second, the regulation of fisheries in the disputed area is not the primary reason for their conclusion.Footnote 130

It is convenient to start the discussion with the grey zone and white zone agreements – the two concepts that sprang to the mind of the delegations to UNCLOS III in their discussion of provisional arrangements.Footnote 131 A common character of the grey zone and white zone agreements is that these agreements have a defined area of application. The area of application often covers, but is not necessarily limited to, the disputed area. The enforcement activities against fisheries within the application area will be governed by the terms of the agreement in question. That is to say, the area of application has a special status and is not considered as the national maritime zone of either party in relation to each other.Footnote 132 Outside this application area, fishing activities will typically be regulated in accordance with the law of the coastal state on whose side of the application area the activities occur, provided that the coastal state is entitled to exercise its jurisdiction under international law. In other words, the parties to the arrangement will provisionally treat the water on their respective sides of the boundaries as their de facto national maritime zones as long as the arrangement is in force. This can be either stated expressly in the agreementFootnote 133 or presumed between the parties.Footnote 134 Thus, the boundaries of the application area virtually become the boundaries that delineate the non-disputed EEZs of the parties. Bouvet considers the boundaries of the application area as “la frontière maritime plurilinéaire”, which consists of at least two lines to delimit maritime or jurisdictional zones or to deal with a particular type of resource.Footnote 135 But Bouvet does not clarify the “juridical nature” of that frontière plurilinéaire: is that “de facto” or “de jure”, “provisional” or “definitive”? Nor is it clear about the status of the zone within lines defining that frontière plurilinéaire and its relation with other maritime zones of the parties. It is perhaps better to conceptualize the application area as a frontier—a term of art used by boundary scholars to indicate a zone separating territories of two states as opposed to boundary, which is a line.Footnote 136 That frontier provisionally and functionally separates the application area, which more often than not contains the disputed area, from the non-disputed area, as long as the agreement lasts. It should be noted that this provisional frontier is not a common zone having the character of a frontier condominium. In the latter case, the sovereignty is shared between the two states, which is in turn the basis for the conjoint exercise of sovereign authority in the area.Footnote 137 By contrast, in the case of grey and white zones, the question of title is not settled given the existence of the without prejudice clause which operates to preserve the positions of the parties to the disputes. The enjoyment of rights by the parties in the grey/white zone is directly based on the fisheries co-operation agreement rather than any mutual recognition of their respective rights. It is also this sovereignty-neutral clause that makes the frontier provisional. Finally, the frontier is functional in nature because its effect is limited to the purpose of the arrangement in question, which is, in the present study, fisheries.Footnote 138

The existence of a well-defined area of application in the grey zone and white zone agreements makes these two types of agreements distinct from the light grey zone agreements, which do not have a clearly defined area of application. Despite its de facto and temporary nature, the frontier in the grey zone and white zone agreements is of practical significance. Given that the raison d’être of provisional arrangements is the existence of disputed maritime areas, the frontier arguably functions to ensure orderly and effective law enforcement, thus preventing disputes and friction which might otherwise arise. The light grey zone agreements, given the lack of a well-defined area of application, cannot serve this purpose.Footnote 139 To a certain extent, the absence of an application area is a weakness of the light grey zone agreements, whose provisions apply to the maritime area of the party. This, as Churchill rightly notes, “of course begs the issue in the disputed area”.Footnote 140

Though both the grey zone and white zone agreements share one common character, that is, the definition of a clear application area, they are conceptually distinct given the fundamental difference regarding enforcement scheme in the area of application.

Under the grey zone agreements, there will be an agreement on how enforcement activities in the area of application can be conducted and co-ordinated. The typical arrangement for enforcement activities in the application area under the grey zone agreements is on a flag state basis (the so-called “flag state enforcement”). Under this scheme, each party will refrain from enforcing its fisheries law and regulations against fishing vessels flying the flag of, or licensed by, the other party.Footnote 141 On the other hand, a third-party vessel fishing in the application area without a proper licence from either of the parties will be subject to the jurisdiction of both parties.Footnote 142 The evident advantage of such a flag state enforcement scheme is that it does not require either contracting state to cede sovereignty or sovereign rights in the disputed area.Footnote 143 With this flag state enforcement scheme, it is arguable that the grey zone functions as a quasi-exclusive national maritime zone for either of the parties. It is quasi-exclusive as the zone is exclusively a national maritime zone of one party in its relation with a third party but not with the other party.Footnote 144 In this connection, it is noteworthy that some light grey zone agreements also contain similar flag state enforcement schemes whereby either party will refrain from enforcement action against vessels flying the flag of the other partyFootnote 145 but may enforce against third-party vessels.Footnote 146

The white zone agreements, by contrast, contain an agreement not to exercise jurisdiction in the area of application. The application area, the white zone, virtually becomes the high seas, open to fishing vessels of not only the parties to the agreement but also to vessels of third countries. The disadvantage is evident from the perspective of fisheries management and conservation. As Churchill correctly points out, without regulation, overfishing is likely in the white zone.Footnote 147 This is empirically proven by the different attitudes of Russia in its negotiations with Norway and Sweden to delimit the grey zone and white zone, respectively. Overfishing was among the reasons that stimulated Russia (then the Soviet Union) to swiftly come to terms with Sweden on maritime delimitation.Footnote 148 By contrast, given the orderly management of fisheries in the grey zone, Russia has been in no hurry to reach agreement with Norway on maritime negotiations.Footnote 149 Thus, the white zone approach is arguably less satisfactory a solution to the conservation of fisheries in the disputed areas than is the light grey zone approach,Footnote 150 let alone the grey zone approach.Footnote 151

It is not difficult to understand the success of the light grey zone and grey zone in terms of fisheries conservation and management. In fact, the very reason for the conclusion of many light grey zone and grey zone agreements is to conserve the stocks or a particular species in the disputed area. For example, Canada and the United States have long pursued conservation efforts with regard to halibut in the Northern Pacific Ocean and Bering Sea.Footnote 152 The 1979 Canada-US Protocol was concluded to adjust these efforts, taking into account the extension of the two countries’ exclusive fishery jurisdiction zones.Footnote 153 Likewise, the Norway-Russia grey zone was concluded, inter alia, precisely to prevent overfishing and a resultant threat to the wellbeing of fish stocks.Footnote 154 Furthermore, the application area of the latter agreement was delineated to take into account important fishing banks in the boundary areas.Footnote 155 It is particularly noteworthy that the setting of the total allowable catch (TAC) in the Grey Zone is executed by the Mixed Commission established under the 1975 Fishing Industry Agreement,Footnote 156 which was in turn concluded to enhance co-operation between Norway and the Soviet Union in managing and conserving transboundary stocks in the Barents Sea.Footnote 157 With hindsight, these light grey zone and grey zone agreements in effect help states fulfil their obligations to co-operate in the conservation and development of the transboundary fish stocks as provided for under Article 63(1) of UNCLOS.Footnote 158

IV. A fishery arrangement in the SCS and an assessment of its merits

The foregoing demonstrates that parties to the Spratly Islands dispute are under an obligation to co-operate. This obligation arises on the one hand from Article 63(1) relating to the transboundary fish stocks and on the other hand from Article 74(3) on provisional arrangements in undelimited areas. This obligation is a weak procedural one, however.Footnote 159 Here, it is submitted that the factual elements mentioned above come to the fore. The present state of fisheries in the SCS gives every reason for an early initiation and conclusion of an appropriate provisional fisheries arrangement in the disputed area. These factual elements also set out the objectives that should be pursued by the particular fisheries arrangement.Footnote 160 In the case of the SCS, two objectives of such an arrangement are evident, one being sustainable fisheries and the other the prevention of tension and friction. In this light, the most appropriate arrangement will be the one that meets both objectives in the context of the SCS. Given the advantages and disadvantages of the various arrangements discussed in Part III, the provisional boundary and “grey zone” agreements are arguably the most effective to achieve these two objectives.Footnote 161 However, the existence of the Spratly Islands dispute at the centre of the SCS means that a line dividing the jurisdictional zones, however provisionally, is impossible. Thus, a grey zone is most apt for the SCS setting. The white zone and light grey zone agreements each can meet only one of the two stated objectives. In particular, the white zone arrangement, by delimiting the limit of national jurisdiction, is arguably more effective than the light grey zone in mitigating friction involving fishing incidents. The latter, on the other hand, is arguably more effective than the former in promoting sustainable fisheries.Footnote 162

In any event, which arrangement to adopt is ultimately a political compromise. Furthermore, many technical matters need further discussion for an arrangement to work.Footnote 163 But whatever type of fisheries arrangement is adopted in the SCS, it would be a success and would serve as an important confidence-building measure among the parties to the Spratly Islands dispute. It would also be in line with the agreement reached between China and ASEAN on taking a step-by-step approach in promoting co-operation in the SCS by focusing first on non-sensitive issues during the implementation of the Declaration on the Conduct of Parties in the South China Sea.Footnote 164

Fisheries co-operation is arguably less sensitive than joint petroleum development in the SCS for several reasons. First, fishing activities are ongoing in the SCS while oil and gas exploitation in the Spratly Islands areas, once conducted, will be new.Footnote 165 A fisheries arrangement is only to better regulate existing activities, rather than introducing new activities to an already complicated region.

More importantly, the exploitation of fish is less costly than any joint undertaking in oil and gas exploitation. Consequently, making a decision to engage in a capital-intensive project such as petroleum exploration and exploitation is clearly a time-consuming process and requires a measure of confidence among the parties. As Lagoni correctly points out:

Provisional arrangements on the exploration and/or exploitation of the natural resources of the continental shelf face much greater problems than those on fishing … Making use of these resources presupposes large financial investments, usually takes considerable time and requires clear legal circumstances as well as a stable political climate.Footnote 166

This observation holds especially true in the case of the SCS. A fisheries arrangement therefore may turn out to be a more feasible co-operation in the SCS. Furthermore, such co-operation might pave the way for the more high-profile undertaking of joint petroleum development in the future.

As a matter of experience, a provisional arrangement for fisheries can be more easily achieved in some areas where no agreement on joint development is possible.Footnote 167 Norway-Russia co-operation in the Barents Sea provides a graphic example. Norway, though agreeing to a fisheries arrangement with Russia, has been staunchly opposed to the idea of the joint development of oil and gas.Footnote 168 In other cases, fisheries co-operation has well preceded oil and gas joint development, especially when the overlapping area involves the question of a sovereignty claim over land territory. The case in point is the East Asian region, where China and Japan had concluded a fisheries arrangement more than a decade before they reached a principled consensus on oil and gas joint development in 2008.Footnote 169

Two other merits of a fisheries arrangement are worth highlighting in the context of the unique Spratly Islands dispute; these being the different extents of claims by the parties to, and the involvement of Chinese Taipei (Taiwan) in, the Spratly Islands dispute. Among the six parties, only China, Chinese Taipei (Taiwan), and Vietnam claim the whole group of the islands,Footnote 170 while the Philippines claims a large part of the group and Malaysia and Brunei some features. This asymmetry in the extent of claims might make difficult the allocation of shares in a joint petroleum development arrangement if it was concluded between all the parties.Footnote 171 This is especially so when oil and gas are non-renewable resources and provide an important source of revenue.Footnote 172 Though the same allocation issue might come up in a negotiation on fisheries co-operation among the parties to the SCS,Footnote 173 it could be argued that the renewable nature of the fishing resource made it easier for the parties to give concessions to one another.

The status of Chinese Taipei (Taiwan) in any co-operative undertaking in the SCS is a conundrum that makes the Spratly Islands dispute both attractive to scholars and intractable. Taiwan is not recognized as a state by the other five claimant states.Footnote 174 But Chinese Taipei (Taiwan), which is occupying the largest feature in the centre of the Spratly Islands, is arguably an indispensable partner in any co-operative arrangement relating to this group of islands. In fact, its participation will have an impact on the geographical area as well as the viability of any co-operative arrangement relating to the Spratly Islands. One solution to the question of Chinese Taipei (Taiwan) in a co-operative arrangement in the SCS is for Chinese Taipei (Taiwan) to be represented by China.Footnote 175 Though this idea may be amenable to all ASEAN claimant states who follow the “One China” policy, whether or not Chinese Taipei (Taiwan) accepts such a solution is open to doubt.

The advantage of embarking on fisheries co-operation in the SCS is that it can emulate the way Chinese Taipei (Taiwan) is embraced in some functional international organizations in which China is also a member state.Footnote 176 With respect to fisheries co-operation, since the adoption of the United Nations Fish Stocks Agreement,Footnote 177 Chinese Taipei (Taiwan) has been increasing its participation in some fisheries management regimesFootnote 178 as a fishing entity with rights and duties analogous to a state.Footnote 179 In any case, Taiwan's participation in any maritime management regime in the SCS will be subject to the acceptance of China as well as very much dependent on the political atmosphere in the region. Politically, China ought to be less hostile to the idea of fisheries co-operation with Chinese Taipei (Taiwan) since “Taiwanese” fishermen are considered Chinese.Footnote 180 Furthermore, there are reports that Chinese and Taiwanese fisheries authorities have discussed co-operation in the waters around Kinmun to curb illegal fishing methods, such as electrofishing and dynamite fishing.Footnote 181

V. Conclusion

In Asia, where nationalism underlines territorial disputes and their solution, it would be naive to argue that territorial sovereignty should be surrendered in favour of a co-operative resource exploitation regime, such as a fisheries arrangement, in the SCS. What is argued here is that the parties to the Spratly Islands dispute should bear in mind their obligation under Article 63(1) of UNCLOS to negotiate the necessary measures to preserve and develop their transboundary stocks in the SCS. In this sense, the sovereignty dispute is somewhat irrelevant. On the other hand, the states bordering the SCS, like every region in the world, are obsessive about territory and sovereignty questions. This mindset cautions against any implication of a surrender of sovereignty over the Spratly Islands dispute in any co-operative arrangement. Fisheries co-operation with a sovereignty neutral clause is clearly more acceptable to the parties than is the concept of condominium. In that sense, the sovereignty question still pervades fisheries co-operation in the SCS. The sovereignty question is also relevant in a different way. Because the Spratly Islands dispute entails the issue of maritime boundary delimitation in the SCS, there arise the duties to negotiate and to exercise mutual restraint among the parties under the common paragraph 3 of Articles 74 and 83 of UNCLOS. Fisheries co-operation in the SCS is thus an arrangement of a practical nature to be concluded according to this provision.

The obligations under Article 63(1) and Articles 74(3) and 83(3) are not mutually exclusive. State practice has clearly demonstrated that a provisional fisheries arrangement can meet the objectives of conserving and developing fish stocks. The benefit of a fisheries arrangement in the SCS is evident. When the prospect for the joint development of oil and gas in the SCS remains elusive, a fisheries arrangement is a suitable provisional arrangement, given the low-profile character of fisheries co-operation. Indeed, it is this low-profile character that also makes it easier to address the question of Chinese Taipei (Taiwan) in a possible arrangement in the SCS.

The factual context of the SCS both stimulates the establishment and informs the content of a fisheries arrangement in the SCS. There is serious reason to believe that in the absence of such an arrangement the present state of affairs is dangerous, such that the parties to the Spratly Islands dispute may sooner or later be in breach of their obligations under UNCLOS. A fisheries arrangement in the SCS is legally sound, economically efficient, and politically commendable as a measure to help defuse tension and promote sustainable fisheries in the SCS. Finally, for evidence of the feasibility of such co-operation in the SCS, one needs to look no farther than the East Asian region where the major party to the Spratly Islands dispute has engaged itself in two well-functioning fisheries arrangements in undelimited areas.

Footnotes

*

PhD Candidate, Faculty of Law, University of Cambridge; Associate, Centrefor South China Sea Studies, Diplomatic Academy of Vietnam; VisitingLecturer, Faculty of International Law, Diplomatic Academy of Vietnam.The author would like to express his deepest gratitude to ProfessorJames Crawford for his guidance. Many people have helped me in writingthis article but special thanks are due to Mr Rolf Einar Fife, DirectorGeneral of the Department for Legal Affairs of the Norwegian Ministry ofForeign Affairs, for sharing Norwegian law of the sea viewpoints as wellas for providing the English translation of the Russia-Norway Grey ZoneAgreement and some important Norwegian literature, to Hoang Phuong Mai,Tran Truong Thuy, Trieu Quang Hai, and Vu Hai Dang for supplyingvaluable information, and to Zhen Sun for checking the Chinese language.An earlier version of this article was presented at the 2nd NUS-AsianSILYoung Scholars Workshop, Panel VI: Water, Singapore, 30September–1 October 2010. The author thanks Professor RobertBeckman, Chairman of the Panel, and the participants at the Workshop,particularly Dinara Ziganshina, for helpful suggestions. Finally, theauthor would also like to thank the anonymous reviewers for theirconstructive comments. The usual caveat applies.

* PhD Candidate, Faculty of Law, University of Cambridge; Associate, Centre for South China Sea Studies, Diplomatic Academy of Vietnam; Visiting Lecturer, Faculty of International Law, Diplomatic Academy of Vietnam. The author would like to express his deepest gratitude to Professor James Crawford for his guidance. Many people have helped me in writing this article but special thanks are due to Mr Rolf Einar Fife, Director General of the Department for Legal Affairs of the Norwegian Ministry of Foreign Affairs, for sharing Norwegian law of the sea viewpoints as well as for providing the English translation of the Russia-Norway Grey Zone Agreement and some important Norwegian literature, to Hoang Phuong Mai, Tran Truong Thuy, Trieu Quang Hai, and Vu Hai Dang for supplying valuable information, and to Zhen Sun for checking the Chinese language. An earlier version of this article was presented at the 2nd NUS-AsianSIL Young Scholars Workshop, Panel VI: Water, Singapore, 30 September–1 October 2010. The author thanks Professor Robert Beckman, Chairman of the Panel, and the participants at the Workshop, particularly Dinara Ziganshina, for helpful suggestions. Finally, the author would also like to thank the anonymous reviewers for their constructive comments. The usual caveat applies.

References

1. No official number of the total features is confirmed. According to Vietnam, the Spratly Islands consist of about a hundred features lying over an area of about 160,000–180,000 km2. See Ministry of Foreign Affairs of the Socialist Republic of Vietnam, The Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes and International Law (Hanoi: MOFA Vietnam, 1988) at 32. Meanwhile, VALENCIA, Mark J., VAN DYKE, Jon M., and LUDWIG, Noel A., Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff, 1997) at 227–234Google Scholar, lists ninety-five features; HANCOX, David and PRESCOTT, Victor, “A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands” (1995) 1 Maritime Briefings 1 at 3–30Google Scholar, describes 135 features. One Chinese scholar claims the number amounts to 230 over 250,000 km2. See SHEN Jianming, “China's Sovereignty over the South China Sea Islands: A Historical Perspective” (2002) 1 Chinese Journal of International Law 94 at 97Google Scholar. Opinions also differ as to the exact geographical location of the islands. According to Hancox and Prescott, supra, the islands are located between 12°N longitude and 112°E latitude, while HEINZIG, Dieter, Disputed Islands in the South China Sea: Paracels, Spratlys, Pratas, Macclesfield Bank (Wiesbaden: Harrassowitz, 1976) at 17Google Scholar and SAMUELS, Marwyn S., Contest for the South China Sea (New York: Methuen, 1982) at 188Google Scholar, describe the islands as lying between 4° and 11.30°N and 109.30° and 117.50°E.

2. Chinese Taipei (Taiwan) is treated here as a separate party, though it is not recognized as a state. See further infra note 174 and the accompanying text.

3. Due to the lack of exploration activity, there is no certainty as to the hydrocarbon potential of the SCS as a whole nor the area around the Spratly Islands. SCHOFIELD, Clive, “Dangerous Ground: A Geopolitical Overview of the South China Sea” in Sam BATEMAN and Ralf EMMERS, eds., Security and International Politics in the South China Sea: Towards a Co-operative Management Regime (London: Routledge, 2009), 7 at 15Google Scholar, considers the estimates relating to the potential of the SCS and the Spratly Islands region as “best guesstimates”.

4. The most detailed and thought-provoking analysis is perhaps Valencia, Van Dyke, and Ludwig, supra note 1. See also ZOU Keyuan, “A New Model of Joint Development for the South China Sea” in Myron H. NORDQUIST, John Norton MOORE, and FU Kuen-Chen, eds., Recent Developments in the Law of the Sea and China (Leiden: Martinus Nijhoff Publishers, 2006) at 155Google Scholar; ZOU Keyuan, “Cooperative Development of Oil and Gas Resources in the South China Sea” in Bateman and Emmers, eds., supra note 3, 80Google Scholar.

5. NGUYEN Hong Thao and Ramses AMER, “A New Legal Arrangement for the South China Sea?” (2009) 40 Ocean Development and International Law 333 at 338Google Scholar.

6. The JMSU was not renewed because of the controversy within the Philippines over the constitutionality of the agreement. See SCHOFIELD, Clive and STOREY, Ian, “The South China Sea Dispute: Increasing Stakes and Rising Tensions”, Jamestown Foundation, Washington, DC, Occasional Paper, 20 November 2009, at 28Google Scholar.

7. Literature on this issue is sparse and often of general discussion. See e.g. HUANG Shuo-Lin, GUO Wen-Lu, and ZHU Zhanhua, “Regional Co-management of Fisheries Resources in the South China Sea” in Nordquist, Moore, and Fu, eds., supra note 4, 203Google Scholar (dealing with the issue in a cursory way by listing the relevant provisions of legal and political documents concluded among the countries in the SCS and the unilateral, bilateral, and regional efforts of states before putting forth some short-term and long-term objectives for fisheries management in the region); Pakjuta KHEMAKORN, “Sustainable Management of Pelagic Fisheries in the South China Sea Region”, United Nations-The Nippon Foundation, New York, Occasional Paper, November 2006 (dealing with general fisheries issues in the SCS rather than issues relating to the Spratly Islands dispute); WANG Kuan-Hsiung, “Bridge over Troubled Waters: Fisheries Cooperation as a Resolution to the South China Sea Conflicts” (2001) 14 Pacific Review 531Google Scholar (putting forth some theories applicable to the SCS but lacking comparative studies on how fisheries arrangements in disputed areas function).

8. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 396 (entered into force 16 November 1994) [UNCLOS].

9. For discussions of the claims to the Spratly Islands, see generally DZUREK, D.J., “The Spratlys Island Dispute: Who's on First?” (1996) 2 Maritime Briefings 1Google Scholar; Valencia, Van Dyke, and Ludwig, supra note 1 at 17–40; Renate HALLER-TROST, The Contested Maritime and Territorial Boundaries of Malaysia: An International Law Perspective (London: Kluwer Law International, 1998) at 322–339Google Scholar. See also Monique CHEMILLIER-GENDREAU, La Souveraineté sur les Archipels Paracels et Spratleys (Paris: L'Harmattan, 1996)Google Scholar.

10. See further NGUYEN Thi Lan-Anh, The South China Sea Dispute: A Reappraisal in the Light of International Law, PhD thesis, University of Bristol, Bristol, 2008, at 55–61Google Scholar; OUDE ELFERINK, Alex G., “The Islands in the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?” (2001) 32 Ocean Development and International Law 169Google Scholar. Contrast with GJETNES, Marius, “The Spratlys: Are They Rocks or Islands?” (2001) 32 Ocean Development and International Law 191CrossRefGoogle Scholar.

11. See generally Barbara KWIATKOWSKA and Alfred SOONS, H.A., “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own” (1990) 21 Netherlands Year Book of International Law 139Google Scholar. For discussion in the context of the SCS, see Oude Elferink, supra note 10 at 173–4; Nguyen, supra note 10 at 51–61.

12. It is interesting to note that two judges of the International Tribunal for the Law of the Sea (ITLOS) give completely different classifications to Heard Island in The ‘Volga’, Russian Federation v. Australia, Prompt Release, ITLOS Case No. 11, Judgment of 23 December 2002. See Declaration by Judge Vukas and Dissent by Judge Anderson, footnote 3.

13. A paper commissioned by Vietnam argues that the features in the Spratly Islands fall within the definition of Article 121(3) and hence are not entitled to an exclusive economic zone and continental shelf. But it is doubtful if this represents the official position of the government of Vietnam. It has been interpreted that the joint submission by Malaysia and Vietnam to extend their continental shelf from coastlines indicates that Malaysia and Vietnam consider the features of the Spratly Islands as having twelve nautical miles of territorial seas only. See Robert BECKMAN, “South China Sea: Worsening Dispute or Growing Clarity in Claims?”, RSIS Commentaries 90/2010, S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University (Singapore), 16 August 2010. See also MCDORMAN, Ted L., “The South China Sea After 2009: Clarity of Claims and Enhanced Prospects for Regional Cooperation?” (2010) 24 Ocean Yearbook 507 at 516–517Google Scholar, 521. But it is plausible to argue that a submission acknowledging the limited territorial reach of the Spratly Islands should not be considered as a bar to future continental shelf claims by the two countries based on these features since any limitation on state sovereignty should not be presumed. As McDorman, supra at 522, acknowledges, “there is still uncertainty such that it would be unwise to dismiss totally the features of the Spratlys as being the basis of ocean claims to an adjacent EEZ and continental shelf beyond 200 nm, particularly in the case of China”. This prudent observation turns out to be true. In its recent diplomatic note to the Secretary-General of the United Nations, China stated categorically that the Spratly Islands are fully entitled to their own exclusive economic zone and continental shelf. See “Note Verbale No. CML/8/2011 (14 April 2011) of the Permanent Mission of the People's Republic of China to the United Nations”, online: 〈http://www.un.org/depts/los〉. The position of the Philippines is less clear, stating vaguely that the regime of islands under Article 121 of UNCLOS will apply to the Spratly Islands, which it claims as the Kalayaan Island Group. See “Philippines: Republic Act No. 9522: An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purpose” (2009) 70 Law of the Sea Bulletin 32, sec. 2(a). This position is reaffirmed in “Note Verbale No. 000228 dated 05 April 2011 of the Permanent Mission of the Republic of the Philippines to the United Nations”, online: 〈http://www.un.org/depts/los〉. Non-parties to the Spratly Islands dispute not surprisingly made their views clear. Indonesia, for example, in its diplomatic note sent to the Secretary-General of the United Nations, officially stated that none of the Spratly Islands is capable of generating an exclusive economic zone and continental shelf of its own. See point 3 of the 19 July 2010 diplomatic note of Indonesia sent to the UN Secretary-General, online: 〈http://www.un.org/Depts/los〉.

14. Schofield, supra note 3 at 12–18, states that the features of the Spratly Islands do not have much intrinsic value in themselves but have the potential to generate large maritime zones and hence entitle claimant states to exploit marine natural resources there, particularly oil and gas.

15. ROSENBERG, David, “Fisheries Management in the South China Sea” in Bateman and Emmers, eds., supra note 3 at 61Google Scholar. Timo KIVIMA KI, ed., War or Peace in the South China Sea? (Copenhagen: NIAS Press, 2002) at 44Google Scholar, ranks the SCS fourth in the nineteen richest fishing zones in the world.

16. For definition see infra note 49.

17. Wang, supra note 7 at 535–6. See Plate 13 in Valencia, Van Dyke, and Ludwig, supra note 1 at 266 for the migration route of yellowfin tuna in the SCS.

18. Wang, supra note 17, at 534.

19. Rosenberg, supra note 15 at 62.

20. Among the parties to the Spratly Island disputes, only in Brunei do fisheries play an insignificant role in an economy where industry makes up almost three-quarters of the GDP.

21. Rosenberg, supra note 15 at 62. See FAO, The State of World Fisheries and Aquaculture 2008 (Rome: Food and Agriculture Organization of the United Nations, 2009) at 154.

22. See FAO, supra note 21, at 171–2.

23. Declaration on the Conduct of Parties in the South China Sea, reproduced in Alan Vaughan LOWE and Stefan TALMON, eds., The Legal Order of the Oceans: Basic Documents on the Law of the Sea (Oxford: Hart Publishing, 2009) at 69Google Scholar.

24. Declaration on the Conduct of Parties in the South China Sea, Preamble at para. 2.

25. China's Instrument of Accession, online: 〈http://www.aseansec.org/15271.htm〉

26. The latest incident involving the use of force was in early July 2007 when Chinese naval vessels fired on a group of Vietnamese fishing boats near the Spratly Islands, killing one Vietnamese fisherman and sinking one boat. See MITTON, Roger, “Vietnam, China Clash Again over Spratlys” Straits Times (19 July 2007)Google Scholar. For other incidents involving the use of force, see the International Boundaries Research Unit's (IBRU) searchable Boundary Archive webpage at 〈http://www.dur.ac.uk/ibru/resources/newsarchive/〉 (1991–2001) and reports on China-Southeast Asia on the Comparative Connections webpage at 〈http://csis.org/program/comparative-connections〉 (1999–present).

27. MA Liyao, “Chinese Fishermen held in Philippines” China Daily (2 June 2010) (reporting that in May 2010 nine Chinese fishermen were arrested by the Philippines near a feature of the Spratly Islands, and twenty-eight others were arrested within ten days by other coastal states in the SCS while these fishermen were working in “China's traditional waters”.) It should be noted that this type of arrest is not typically directed against Chinese fishermen. Newspapers from Vietnam also reported the arrest of Vietnamese fishermen fishing in the South China Sea. According to the statistics of the Vietnamese Ministry of Agriculture and Rural Development, between 2006 and 2010, 1,186 vessels with 7,045 fishermen were arrested by foreign authorities in 641 incidents and 751 fishermen are being detained abroad. See “Ng dân Vit Nam b Malaysia bt gi ngày càng nhiu” [in Vietnamese: More and more Vietnamese fishermen have been arrested by Malaysian authorities], online: 〈http://vitinfo.com.vn/Muctin/Xahoi/LA78120/default.htm〉. Though the geographical locations of these arrests are not specified, it is reasonable to believe that they include incidents in the Spratly Islands area. See also Malaysian National News Agency, “252 Foreign Fishermen Detained in First Six Months” Bernama (30 June 2010).

28. MORTON, Brian, “Fishing for Diplomacy in China's Seas” (2003) 46 Marine Pollution Bulletin 795 at 795Google Scholar, reporting the arrest of Thai and Indonesian fishermen in the SCS by Malaysia and the Philippines respectively.

29. For example, the Philippine Justice Secretary asked the Foreign Secretary in September 2002 to declare China's ambassador a persona non grata because of the latter's bullying tactics in trying to secure the release of 122 mainland Chinese detained for fishing illegally in Philippine waters. See Morton, supra note 28.

30. See “China Starts Regular Patrols of South China Sea” Xinhua (25 April 2010); CLEM, Will, “Patrol Boats to Escort Fishing Vessels in Disputed Spratlys” South China Morning Post (3 April 2010)Google Scholar.

31. Clem, supra note 30.

32. Vietnam Ministry of Foreign Affairs, “Chinese Dispatch of Fishery Administration Ships to Truong Sa a Serious Violation of Vietnam's Sovereignty”, Press and Information Department of the Ministry of Foreign Affairs (5 April 2010), online: 〈http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns100405191529GBL9iiKolEER〉.

33. [in Chinese: Rushi FAN, Miao XING, and Donghua ZHOU, “Malaysian Military Ship Harassed Chinese Fishery's Guards”, Jinyang Web – Xinkua Newspaper, 1 May 2010], online: 〈http://news.online.sh.cn/news/gb/content/2010-05/01/content_3465483.htm〉.

34. This typically occurs to tuna. See Rosenberg, supra note 15 at 64.

35. Ibid., at 66.

36. Due to the presence of military garrisons on the Spratly Islands, no comprehensive survey involving all parties to the dispute has yet been conducted.

37. See e.g. Angel C. ALCALA, “Summary of the Marine Biology Results of JOMSRE-SCS I, II, and IV and Their Management Implications”; and NGUYEN Van Long, PHAN Kim Hoang, and HOANG Xuan Ben, “Status of the Marine Biodiversity in the Northern Spratly Islands, South China Sea”; and Brian STOCKWELL and NGUYEN Van Long, “Reef Fish Stocks of the Northern Spratly Islands: A Summary of the Findings of JOMSRE-SCS III and JOMSRE-SCS IV” in Angel C. ALCALA, ed., Proceedings of the Conference on the Results of the Philippines-Vietnam Joint Oceanographic and Marine Scientific Research Expedition in the South China Sea (JOMSRE-SCS I to IV), 26−29 March 2008, Ha Long City, Vietnam (Dumaguete: Silliman University Press, 2008), 5, 11, 21, respectively.

38. Alex PAL, “Spratly's Fish Stock Dwindling, Say Scientists” Inquirer (3 May 2007).

39. See Clive SCHOFIELD and Ian TOWNSEND-GAULT, “Brokering Cooperation Amidst Competing Maritime Claims: Preventative Diplomacy in the Gulf of Thailand and South China Sea” in Aldo E. CHIRCOP, Ted L. MCDORMAN, and Susan J. ROLSTON, eds., The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden: Martinus Nijhoff Publishers, 2009), 643 at 649Google Scholar, stating that Taiwan will become a member of UNCLOS should it be allowed to.

40. See PARK Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (The Hague: Kluwer Law International Law, 2000) at 14Google Scholar. In the following discussion, an attempt will be made to demonstrate that UNCLOS provisions applicable to fisheries co-operation in the SCS represent rules of customary international law and hence are binding upon Taiwan.

41. Historically, exclusive fishing rights were one of the reasons for the establishment and extension of a coastal state's sovereignty over the territorial sea. With the advent of the EEZ, the significance of fishing rights subsumed within the concept of sovereignty over the territorial sea was, however, reduced greatly. For a history of the territorial sea, see Thomas Wymess FULTON, The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters (Edinburgh/London: William Blackwood and Sons, 1911)Google Scholar. For the development of the concept of the EEZ and the impact of fishing rights upon the extension of states’ maritime zones, see David Joseph ATTARD, The Exclusive Economic Zone in International Law (Oxford: Clarendon Press, 1987)Google Scholar.

42. EVANS, Malcolm D., “The Law of the Sea” in Malcolm D. EVANS, ed., International Law, 3rd edn. (Oxford: Oxford University Press, 2010), 651 at 653CrossRefGoogle Scholar, states that “[UNCLOS] provides the starting point for any presentation of the contemporary law of the sea”.

43. UNCLOS, supra note 8, art. 56(1)(a).

44. The ICJ in the Continental Shelf (Libya v. Malta) [1985] I.C.J. Rep. 13, para. 34, states “[i]t is … incontestable that … the institution of the exclusive economic zone … is shown by the practice of States to have become a part of customary law”. This is the view of the majority of scholarly writings on the law of the sea and the EEZ. See Attard, supra note 41 at 291–2 (reviewing state practice of 1975–1985); KWIATKOWSKA, Barbara, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht: Martinus Nijhoff Publishers, 1989) at 91–92Google Scholar (claiming the obligations of customary nature restrict the discretion of states in the exercise of their sovereign rights in the EEZ); Carl August FLEISCHER, “Fisheries and Biological Resources” in René-Jean DUPUY and Daniel VIGNES, eds., A Handbook on the New Law of the Sea 2 (Dordrecht: Martinus Nijhoff, 1991), 989 at 1076–1078Google Scholar (arguing the institution of EEZ contains not only the rights but also the obligations of coastal states). VUKAS, Budislav, The Law of the Sea: Selected Writings (Leiden: Martinus Nijhoff Publishers, 2004) at 116Google Scholar (stating that the regime of EEZs forms part of the body of customary law of the sea, the implication being that all fundamental norms concerning the rights and duties of coastal and other states are also part of customary law). For an alternative view, see CHURCHILL, Robin R. and Alan Vaughn LOWE, The Law of the Sea, 3rd edn. (Manchester: Manchester University Press, 1999) at 161Google Scholar, 290 (accepting the customary nature of coastal states’ rights in the EEZ, principally Articles 56 and 58, but doubting the customary nature of other provisions, particularly Articles 61 and 62).

45. UNCLOS, supra note 8, art. 61(1).

46. Ibid., art. 61(2).

47. Ibid., art. 61(3).

48. Ibid., art. 62(1).

49. The term “transboundary stock” does not appear in the Convention. This term is, however, coined in the Commentary on UNCLOS prepared by the Virginia Centre for Ocean Law and Policy to distinguish stock migrating between the EEZs of more than one state (transboundary stocks) from stocks between EEZs and adjacent high seas (straddling stocks). See NANDAN, Satya N., Shabatai ROSENNE, and GRANDY, Neal R., eds., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (Dordrecht: Martinus Nijhoff, 1993) at 640Google Scholar. This distinction is adopted by the FAO in the organization's documents and papers. See e.g. FAO Code of Conduct for Responsible Fisheries, para. 7.1.3; Daniel OWEN, “Legal and Institutional Aspects of Management Arrangements for Shared Stocks with Reference to Small Pelagics in Northwest Africa”, FAO Fisheries Circular 988 (Rome: FAO, UN, 2003) at 1; Gordon Ross MUNRO, Annick VAN HOUTTE, and Rolf WILLMANN, “The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects”, FAO Fisheries Technical Paper 465 (Rome: FAO, UN, 2004) at 3. Churchill and Lowe, supra note 44 at 249, however, use “shared/joint stock” to denote fish stocks migrating through the EEZs of more than one state. HEY, Ellen, The Regime for the Exploitation of Transboundary Marine Fisheries Resources: The United Nations Law of the Sea Convention Cooperation Between States (Dordrecht: Martinus Nijhoff, 1989)Google Scholar, by contrast, uses the term “transboundary stocks” to denote both fish stocks between the EEZs and those between the EEZs and adjacent high seas.

50. See “Note on the use of the word ‘shall’ ” in Nandan, Rosenne, and Grandy, supra note 49, at xlv.

51. Ibid., at 644.

52. Ibid., at 646. See also Churchill and Lowe, supra note 44 at 294; “International Committee on the EEZ Part II: Report” (1992) 65 International Law Association Reports of Conferences 254, para. 12.

53. KAYE, Stuart B., International Fisheries Management (The Hague: Kluwer Law International, 2001) at 114–115Google Scholar. For general principles of law relating to transboundary natural resources other than fish, see Hey, supra note 49, chapter 3. Kwiatkowska, supra note 44 at 92, suggests that this duty to co-operate has the character of emergent or emerging principles or rules of customary law.

54. CHURCHILL, Robin R., “The Management of Shared Fish Stocks: The Neglected ‘Other’ Paragraph of Article 63 of the UN Convention on the Law of the Sea” in Anastasia STRATI, Maria GAVOUNELI, and Nikolaos SKOURTOS, eds., Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After (Leiden: Martinus Nijhoff Publishers, 2006), 3 at 11Google Scholar.

55. Nandan, Rosenne, and Grandy, supra note 49, at 647.

56. Ibid., at 801, 954.

57. As will be seen below, the difference in the characteristics of the living and non-living resources in the EEZ and continental shelf respectively is of degree rather than in kind. See infra at p. 14.

58. The paragraph contains another sentence relating to the non-prejudicial nature of this type of arrangement. This will be addressed in the next section when discussing the “without prejudice clause” in fisheries co-operation agreements. See infra at pp. 19–20.

59. See supra note 50. See also Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII, of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration Between Guyana and Suriname, Award, 17 December 2007, para. 461 [Guyana/Suriname Arbitration]; Rainer LAGONI, “Interim Measures Pending Maritime Delimitation Agreements” (1984) 78 American Journal of International Law 345 at 353.

60. Nandan, Rosenne, and Grandy, supra note 49 at 815, 984, cited with approval in Guyana/Suriname Arbitration, supra note 59, para. 461.

61. See Nandan, Rosenne, and Grandy, supra note 49 at 815, 984; Lagoni, supra note 59 at 354–8, 362–6. Guyana/Suriname Arbitration, supra note 59, para. 459.

62. Nandan, Rosenne, and Grandy, supra note 49, at 815, 984; Lagoni, supra note 59 at 354; MIYOSHI Masahiro, “The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf” (1988) 3 International Journal of Estuarine and Coastal Law 1 at 12Google Scholar.

63. See infra at pp. 17–18.

64. Lagoni, supra note 59 at 362.

65. See Nandan, Rosenne, and Grandy, supra note 49 at 815, 984; Lagoni, supra note 59 at 362.

66. See Reports of the Chairman of Negotiating Group 7 of 20 April 1979 and of 22 August 1979, reproduced in Renate PLATZÖDER, Third United Nations Conference on the Law of the Sea: Documents Vol. IX (London: Oceana Publications, 1986) at 459 and 468Google Scholar respectively.

67. See Guyana/Suriname Arbitration, supra note 59, para. 470.

68. It should be noted that Ireland's early proposal on a moratorium of economic activities in the disputed area was made on the assumption that states would make bona fide claims in accordance with delimitation principles, i.e. median/equidistant line combined with equitable principles. See Ireland: Draft Article on Delimitation of Areas of Continental Shelf Between Neighbouring States, UN Doc. A/CONF. 62/C.2/L.43 (1974).

69. Though writings of scholars share a lot of common ground with international courts and tribunals on this issue, the influence of the latter is clearly greater in the development of the law. See Pierre-Marie DUPUY, “Formation of Customary International Law and General Principles” in Daniel BODANSKY, Jutta BRUNNÉE, and Ellen HEY, eds., The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007), 449 at 460Google Scholar, 462.

70. Guyana/Suriname Arbitration, supra note 59.

71. Suriname's Submissions 2.C, at Guyana/Suriname Arbitration, supra note 59, paras. 161, 456.

72. Ibid., para. 465 (citing Virginia Commentary), para. 481.

73. Ibid., paras. 467, 479.

74. The Tribunal borrows this standard from the regime of interim measures developed in the Aegean Sea Continental Shelf (Greece v. Turkey) case. See Guyana/Suriname Arbitration, supra note 59, paras. 468–9.

75. Guyana/Suriname Arbitration, supra note 59, paras. 466–7. Thus seismic testing is not inconsistent with an obligation to make every effort not to jeopardize or hamper the reaching of a final agreement. See para. 481.

76. Ibid., paras. 466–7.

77. Ibid., para. 470 (emphasis added).

78. CHURCHILL, Robin R., “Fisheries Issues in Maritime Boundary Delimitation” (1993) 17 Marine Policy 44 at 51Google Scholar, argued that there is no prohibition of fishing in a disputed EEZ comparable to an obligation not to exploit a disputed continental shelf. This statement was later qualified by an acknowledgement that whether or not such an obligation existed depended on the interpretation of Article 74(3). See Churchill and Lowe, supra note 44 at 199.

79. Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Interim Protection Order, [1972] I.C.J. Rep. 12, para. 26, dispositif, para. 1(e) [Fisheries Jurisdiction (UK v. Iceland), Interim Protection Order]; Fisheries Jurisdiction (Germany v. Iceland), Interim Protection Order, [1972] I.C.J. Rep. 30, para. 27, dispositif, para. 1(e) [Fisheries Jurisdiction (Germany v. Iceland)].

80. This measure was proposed by the UK and Germany. See Fisheries Jurisdiction (UK v. Iceland), Interim Protection Order, ibid., paras. 23–4; Fisheries Jurisdiction Cases (United Kingdom v. Iceland): Request for the Indication of Interim Measures Submitted by the Government of Great Britain and Northern Ireland, I.C.J. Pleadings, Vol. I, 69, para. 19, and Fisheries Jurisdiction (Germany v. Iceland), Interim Protection Order, paras. 24–5; Fisheries Jurisdiction Cases (Germany v. Iceland): Request for the Indication of Interim Measures Submitted by the Government of the Federal Republic of Germany, I.C.J. Pleadings, Vol. II, 21, para. 18.

81. But it is submitted that the limit set by the Court was somewhat arbitrary and based on the existing fishing practice of the UK and Germany rather than a conservation consideration.

82. The Tribunal did so by prescribing several provisional measures which required, inter alia, Australia, Japan, and New Zealand not to exceed the annual limitations on the catch of southern bluefin tuna last agreed by the three countries, and to refrain from conducting an experimental fishing programme outside their respective catch limitations. See Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan) [2000] ITLOS Cases No. 3/4, dispositif, paras. c and d [Southern Bluefin Tuna].

83. It is submitted that the Tribunal's Order was not unambiguous on this point. In the case, Australia and New Zealand contended that Japan's unilateral implementation of the experimental fishing programme outside its catch limitation violated their rights under Articles 64 and 116 to 119 of UNCLOS and that further catches of southern bluefin tuna would cause immediate harm to their rights. See Southern Bluefin Tuna cases, paras. 68–9. The Tribunal, in making its order, however, relied on both conditions for the prescription of provisional measures under Article 290 of the Convention, that is, the preservation of rights and the prevention of serious harm to the marine environment. See Southern Bluefin Tuna, para. 67. Judge Laing, in his Separate Opinion, para. 18, argued that the order should be based on the preservation of rights. Contrast Judge Treves, Separate Opinion, para. 6, who implied that, in the instant case, the two conditions for prescribing provisional measures are interrelated because the rights to be protected concerned the conservation of the southern bluefin tuna stock, which was also an element in the protection and preservation of the marine environment.

84. A fishery will collapse when both “growth overfishing” and “recruitment overfishing” occur. The former means fish are caught too soon, that is, they are taken before they grow to the maximum biomass size; the latter means the number of spawners are severely reduced, resulting in the production of insufficient offspring to replenish the population of fish of catchable sizes (recruits). See IVERSEN, Edwin S., Living Marine Resources: Their Utilization and Management (New York: Chapman and Hall, 1996) at 247–248CrossRefGoogle Scholar. The recovery rate of each collapsed stock depends on its spawning ability. For many species which produce large amount of eggs every year, it is possible for them to recover quickly after collapse. However, for some creatures, such as whales, which calve annually or biannually, the recovering period may be decades.

85. Discussions on law enforcement at sea in law of the sea textbooks often take it as given that the relevant maritime jurisdictional zones are clearly delimited. Thus the issues studied are not the basis of law enforcement as such but its international legal standards, i.e. the limitations on the use of force, the criteria of hot pursuit, and consequences (liabilities) for wrongful acts of law enforcement. See e.g. Daniel Patrick O'CONNELL (Ivan Anthony SHEARER, ed.), The International Law of the Sea, Vol. 2 (Oxford: Clarendon Press, 1982)Google Scholar, chapter 28; ROTHWELL, Donald R. and Tim STEPHENS, The International Law of the Sea (Oxford: Hart Publishing, 2010)CrossRefGoogle Scholar, chapter 17; SOHN, Louis B. and Kristen GUSTAFSON, Law of the Sea in a Nutshell, 2nd edn. (St. Paul, MN: West, 2010) at 274–275Google Scholar, 413–22.

86. The Guyana/Suriname Arbitral Tribunal, however, glossed over the Surinamese statement that it was normal for coastal states to undertake law enforcement activities in disputed areas (usually in relation to fisheries) against vessels under foreign flags including the flag of the other party to the dispute, unless specific arrangements exist. Suriname's Rejoinder, 4.33; Guyana/Suriname Arbitration, supra note 59, para. 441.

87. Fisheries Jurisdiction (UK v. Iceland), Interim Protection Order, dispositif, para. 1(c); Fisheries Jurisdiction (Germany v. Iceland), Interim Protection Order, dispositif, para. 1(c). Iceland nevertheless declined to follow the Court's orders.

88. ROSENNE, Shabtai, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) at 207Google Scholar.

89. Fisheries Jurisdiction Case (UK v. Iceland), Merits Judgment [1974] I.C.J. Rep. 3, para. 20; Fisheries Jurisdiction Case (Germany v. Iceland), Merits Judgment [1974] I.C.J. Rep. 175, para. 21.

90. See The Case of the SS “Lotus” [1927] 10 Series A 3 at 18 [Lotus case]. See also BROWNLIE, Ian, Principles of Public International Law, 7th edn. (Oxford: Oxford University Press, 2008) at 309Google Scholar.

91. See the Lotus case, supra note 90 at 18–19.

92. See UNCLOS, supra note 8, art. 298(1).

93. See the judgment by the District Court of Groningen in X. v. the State Secretary for Agriculture, Nature Management and Fisheries, Council of State, Administrative Law Division on 17 May 2001, in which it opined that “each country considers that its national law is applicable in the area concerned because its legislation applies to what it considers to be its territory” and that “the Ems-Dollard Treaty [a provisional arrangement] was and is to prevent conflicts arising as a consequence of the fact that both countries apply their national laws in the disputed area”. Relevant extract reproduced in L.A.N.M. (Bert) BARNHOORN, “Netherlands Judicial Decisions Involving Questions of Public International Law, 2003–2004” (2005) 36 Netherlands Yearbook of International Law 427 at 477–481Google Scholar, 479. The District Court's judgment was quashed by the Administrative Court but for a different reason.

94. Guyana/Suriname Arbitration, supra note 59, para. 445 (emphasis added), citing S.S. “I'm Alone” (Canada/United States) [1933, 1935] 3 RIAA 1615 [I'm Alone case], Red Crusader (Commission of Enquiry, Denmark-United Kingdom) [1962] 35 International Law Report 199 [Red Crusader], The M/V “SAIGA” Case (Saint Vincent and the Grenadines v. Guinea) [1999] ITLOS List of Cases: No 2 [SAIGA case]. This is arguably a customary rule. See GUILFOYLE, Douglas, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009) at 277–282CrossRefGoogle Scholar.

95. SAIGA case, supra note 94, para. 155.

96. Ibid., para. 156, citing the “I'm Alone” and Red Crusader cases.

97. Guyana/Suriname Arbitration, supra note 59, para. 445.

98. Ibid., para. 484.

99. Arnold Duncan MCNAIR, The Law of Treaties (Oxford: Clarendon Press, 1961) at 20Google Scholar. See also CHENG, Bin, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953) at 116–117Google Scholar.

100. Lake Lanoux Arbitration (France v. Spain) [1957] 24 International Law Reports 101 at 128 [Lake Lanoux Arbitration].

101. This is the fundamental difference between pactum de negotiando and pactum de contrahendo, the latter requiring a certain outcome from the negotiations, i.e. the conclusion of a treaty. See Agreement on German External Debts Arbitration (Greece v. Federal Republic of Germany), 47 International Law Reports 418 at 453. See also OWADA Hisashi, “Pactum de contrahendo, pactum de negotiando” in Rüdiger WOLFRUM, ed., Max Planck Encyclopedia of Public International Law (Oxford Online Edition: Oxford University Press, 2008)Google Scholar; McNair, supra note 99 at 18–20. Contrast with Ivan Anthony SHEARER, “High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals” in KURIBAYASHI Tadao and Edward L. MILES, eds., The Law of the Sea in the 1990s: A Framework for Cooperation (Honolulu: Law of the Sea Institute, 1992), 243 at 245Google Scholar; BEYERLIN, Ulrich, “Pactum de Contrahendo, Pactum de Negotiando” in Rudolf BERNHARDT, ed., Encyclopedia of Public International Law 7 (Amsterdam: Holland, 1984), 375 at 376Google Scholar, arguing that the difference between these two obligations is no longer meaningful as the requirement of best efforts to resolve a dispute in good faith is the principal element of both duties. The Tribunal in the Barbados/Trinidad and Tobago Arbitration also appears to consider the distinction insignificant when talking about a “duty to agree” in the sense of the duty to negotiate, partly because of the commitments made by the agents of the parties before the Tribunal. See Barbados/Republic of Trinidad and Tobago [2006] XXVII RIAA 147, paras. 286–93.

102. Railway Traffic Between Lithuania and Poland [1931] PCIJ Series A/B, No. 42 108, 116.

103. As regards the “obligation to negotiate” under Articles 74(3) and 83(3), see Guyana/Suriname Arbitration, supra note 59, para. 461.

104. Cheng, supra note 99 at 118.

105. The principle of “good faith” implies the observance by states of a certain standard of fair dealing. See Cheng, supra note 99 at 107–17.

106. The Arbitral Tribunal in the Guyana/Suriname Arbitration ruled that Suriname failed to meet its obligation to negotiate under Articles 74(3) and 83(3) of UNCLOS for, inter alia, its failure to respond to Guyana's new draft and to continue negotiations with Guyana. See Guyana/Suriname Arbitration, supra note 59, paras. 473–74.

107. Lake Lanoux Arbitration, supra note 100 at 130.

108. North Sea Continental Shelf Cases (Federal Republic of Germany v. Demark and Federal Republic of Germany v. Netherlands) [1969] I.C.J. Rep. 3, para. 85 (emphasis added). See also Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain) [2001] I.C.J. Rep. 40, 119; Agreement on German External Debts Arbitration (Greece v. Federal Republic of Germany) [1974] 47 International Law Reports 418 at 453; Guyana/Suriname Arbitration, supra note 61, para. 461.

109. Guyana/Suriname Arbitration, supra note 59, para. 461.

110. See Gerald FITZMAURICE, “The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points” (1957) 33 British Year Book of International Law 203 at 210. See also Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980), art. 31(3)(b).

111. For a summary account of agreements on transboundary stocks, see Owen, supra note 49. Contrast with Churchill, supra note 54 at 13, stating that Owen's study contains only twenty-eight proper arrangements relating to transboundary stocks and there are ten more agreements.

112. For a useful description of existing agreements up to 2000, see KIM Sun Pyo, Maritime Delimitation and Interim Arrangements in North East Asia (The Hague: Martinus Nijhoff, 2004), chapters 3, 5.

113. Churchill, supra note 78 at 45–50, classifying, in order of comprehensiveness and effectiveness, arrangements on fisheries activities in disputed EEZs into four categories, namely “grey zone” agreements, “light grey zone” agreements, “white zone” agreements, and “miscellaneous agreements”. The last category embraces the 1981 Australia-Indonesia Memorandum of Undestanding on a provisional boundary line (see infra note 115), and two other agreements which arguably fall into Churchill's loosely defined concept of “light grey zone” agreements. See infra note 130.

114. It should be noted that not all fisheries arrangements fit neatly within one category. For example, the Agreement on Fisheries Between Japan and the Republic of Korea, signed on 23 November 1998, [1998 Japan-South Korea Fisheries Agreement], combines elements of a grey zone agreement and a provisional fishing boundary agreement; the Agreement on Fisheries Between the People's Republic of China and the Republic of Korea, signed on 3 August 2000 [2000 China-South Korea Fisheries Agreement] contains elements of both a grey zone agreement and a white zone agreement. For a useful summary of these two agreements, see Kim, supra note 112 at 249–72. For text, see Kim, supra note 112, Appendices 2 and 4, at 327ff and 347ff respectively.

115. See e.g. Memorandum of Understanding between the Government of Australia and Government of the Republic of Indonesia Concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement [Memorandum of Understanding], 29 October 1981 (entered into force on 1 February 1982), reproduced in CHARNEY, Jonathon I. and ALEXANDER, Lewis M., eds., International Maritime Boundaries II (Dordrecht: Martinus Nijhoff, 1993) at 1238ffGoogle Scholar; Norwegian Declaration attached to the 1978 Norway-Russia Grey Zone Agreement; Protocol Amending the Convention Between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Area, 29 March 1979 [1979 Canada-US Halibut Protocol], art. VI, text reproduced in NORDQUIST, Myron H. and SIMMONDS, Kenneth R., eds., New Directions in the Law of the Sea IX (Dobbs Ferry, NY/London: Oceana Publications; British Institute of International and Comparative Law, 1980) at 233–249Google Scholar; Agreement on Fisheries Between the People's Republic of China and Japan, signed on 11 November 1997 [1997 China-Japan Fisheries Agreement], art. 12, English translation in Kim, supra note 112, Appendix 3 at 338ff; 1998 Japan-South Korea Fisheries Agreement, supra note 114, art. 15.

116. Lagoni, supra note 59 at 359.

117. Contrast with Fisheries Jurisdiction (UK v. Iceland), Merits Judgment, supra note 91, paras. 37–41.

118. Minquiers and Ecrehos (France v. United Kingdom), [1953] I.C.J. Rep. 47.

119. Ibid., at 58.

120. Ibid.

121. A sovereignty neutral clause is particularly important in any future arrangements relating to the Spratly Islands dispute given the fact that some parties to the dispute are reluctant to retreat from assertions of sovereignty.

122. See Memorandum of Understanding, supra note 115. Another agreement is the Agreement on Provisional Arrangements for the Delimitation of the Maritime Boundaries Between the Republic of Tunisia and the People's Democratic Republic of Algeria (with Annex of 7 August 2002), 11 February 2002, 2238 U.N.T.S. 197 (entered into force 23 November 2003).

123. This means that the provisional line applies only to pelagic fisheries and jurisdiction over sedentary species in the region is regulated by seabed agreements.

124. It was also agreed that the arrangement would have no effect on the position of Indonesian traditional fishermen operating in accordance with the Memorandum of Understanding Between the Government of Australia and the Government of the Republic of Indonesia Regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf, 7 November 1974.

125. Ibid., para. 6. But see comments by PRESCOTT, Victor, “Report No. 6–2(4)” in Charney and Alexander, supra note 115, 1229 at 1230–1Google Scholar. It turned out that the Australia-Indonesia Provisional Fisheries Surveillance and Enforcement Arrangement later became the EEZ boundary between the two countries with minor modifications in the Treaty Between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997, online: 〈http://www.un.org/Depts/los〉.

126. The term is believed to originate from the Norway-Russia Grey Zone Agreement. See Churchill, supra note 78 at 45. The full name of the agreement is Agreement of 11 January 1978 between Norway and the Soviet Union on a Temporary Practical Arrangement for Fishing in an Adjacent Area in the Barents Sea, with Attached Protocol on a Temporary Arrangement for Fishing in an Adjacent Area in the Barents Sea in Overenskomster med Fremmede Stater (Norwegian Treaty Series) 436 (English translation on file with the author) [1978 Norway-Russia Grey Zone Agreement]. The Agreement was intended to last for one year after its conclusion but has been renewed annually since then. It is reported that the Grey Zone Agreement will be terminated upon the entry into force of the recently concluded Delimitation Agreement between Norway and Russia. See infra note 149.

127. See Churchill, supra note 78 at 45; Lagoni, supra note 59 at 360.

128. This term originates from a series of agreements concluded by Sweden with its Baltic neighbours. See Churchill, supra note 78 at 49.

129. Such a restraint is implied in the oblique para. b of the Protocol to Agreement Between the Government of the Kingdom of Sweden and the Government of the Union of Soviet Socialist Republics on Mutual Relations in the Field of Fisheries, 22 December 1977, 213 (entered into force 24 January 1980). The said paragraph reads “Neither party shall take unilateral action likely to affect the outcome of future negotiations concerning delimitation”. For interpretation of this paragraph, see Churchill, supra note 78 at 49.

130. “Light grey zone” agreements, thus loosely defined, arguably include Churchill's two “miscellaneous agreements”, namely the 1977 Canada-United States Reciprocal Fisheries Agreement (which provides, in order to avoid disputes concerning enforcement, that each state will enforce laws and regulations against vessels flying its flag or of third states but not against vessels of the other state and that neither party will allow a third state's vessels to fish in the disputed area), and the 1989 Canada-France Agreement (which deals with not only fisheries in the disputed area but also French fishing in undisputed parts of the Canadian EEZ). See Churchill, supra note 78 at 45–50. For the texts of the agreement, see 1077 U.N.T.S. 55 (1977 Canada-United States Reciprocal Agreement) and (1990) 29 International Legal Materials 7 (1989 Canada-France Agreement).

131. See statement by the Chairman of the Negotiating Group 7 on 12 September 1978 on Interim Measures, Document NG7/23 reproduced in Platzöder der, supra note 66 at 528.

132. In the case of the “white zone” agreement, the area of application is considered as “high seas”. See Churchill, supra note 78 at 48–9.

133. See e.g. 1998 Japan-South Korea Fisheries Agreement, supra note 114, Annex II.

134. For example, under the 1978 Norway-Russia Grey Zone Agreement, the parties assume during the validity of the Agreement that the area within 200 nautical miles of the Soviet coast is regarded by the USSR as a Soviet area of fisheries jurisdiction while the area within 200 nautical miles of the Norwegian coast north of the Grey Zone is regarded as being part of Norway's economic zone (though an area within 200 nautical miles of Norwegian coast and beyond 200 nautical miles of the Soviet coast is curiously regarded as high seas). See CHURCHILL, Robin R. and Geir ULFSTEIN, Marine Management in Disputed Areas: The Case of the Barents Sea (London: Routledge, 1992) at 66–67Google Scholar.

135. Jean-Pierre BOUVET, L'unité de Gisement (Paris: L'Harmattan, 2004) at 197–202Google Scholar.

136. Samuel Whittemore BOGGS, International Boundaries: A Study of Boundary Functions and Problems (New York: Columbia University Press, 1940) at 22Google Scholar; Victor PRESCOTT and Gillian Doreen TRIGGS, International Frontiers and Boundaries: Law, Politics and Geography (Leiden: Martinus Nijhoff Publishers, 2008) at 11–12Google Scholar. See also Anthony Oye CUKWURAH, The Settlement of Boundary Disputes in International Law (Manchester: Manchester University Press, 1967) at 11–12Google Scholar. The concept is applied by Johnston in the case of maritime delimitation: JOHNSTON, Douglas M., The Theory and History of Ocean Boundary-Making (Kingston: McGill-Queen's University Press, 1988) at 3Google Scholar. In daily usage, the two terms, “frontier” and “boundary”, are, however, used interchangeably. In French, the word “frontière” can mean both a line and a zone and there is no equivalent to the English word “boundary”. See GRANT, John P. and J. Craig BARKER, Parry and Grant Encyclopaedic Dictionary of International Law, 3rd edn. (Oxford: Oxford University Press, 2009) at 229CrossRefGoogle Scholar, stating that “[t]hough [the term ‘frontier’] is frequently used interchangeably with the term boundary, it perhaps has a less exact significance, connoting a zone with width or depth as well as length”. Contrast with Jean SALMON, ed., Dictionnaire de Droit International Public (Bruxelles: Bruylant, 2001), 520–1. French writers sometimes use the word “frontière-zone” as equivalent to the English term “frontier” and “frontière-ligne” or “la limite” to “boundary”.

137. Abdalla Ali EL-ERIAN, Condominium and Related Situations in International Law: With Special Reference to the Dual Administration of the Sudan and the Legal Problems Arising out of It (Cairo: Fouad I University Press, 1952) at 99Google Scholar. For the classification of condominia into different types, i.e. frontier, colonial, and succession condominia, and examples, see CORET, Alain, Le Condominium (Paris: Librairie gènèrale de droit et de jurisprudence, 1960) at 133–235Google Scholar.

138. It is, however, noteworthy that in recent provisional arrangements, the frontier application area functions to delimit both the water column and the seabed. See e.g. Treaty Between the Federal Republic of Nigeria and the Democratic Republic of São Tomé and Principe on the Joint Development of Petroleum and Other Resources, in Respect of Areas of the Exclusive Economic Zone of the Two States, 21 February 2001 (entered into force 16 January 2003); Exclusive Economic Zone Co-operation Treaty Between the State of Barbados and the Republic of Guyana Concerning the Exercise of Jurisdiction in Their Exclusive Economic Zones in the Area of Bilateral Overlap Within Each of Their Outer Limits and Beyond the Outer Limits of the Exclusive Economic Zones of Other States, 2 December 2003, 2277 U.N.T.S. 201 (entered into force 5 May 2004).

139. Though it is possible to argue that the flag state enforcement scheme can serve to prevent dispute over enforcement, the problem of fishing vessels flying the flag of a third state still persists.

140. Churchill, supra note 78 at 47.

141. See e.g. Protocol to the 1978 Norway-Russia Grey Zone Agreement, supra note 126, para. 3; 1998 Japan-South Korea Agreement, supra note 114, Annex, paras. 2 and 3.

142. See e.g. Protocol to the 1978 Norway-Russia Grey Zone Agreement, supra note 126, para. 10(b).

143. See Churchill and Ulfstein, supra note 134 at 67, stating that flag state enforcement (or split jurisdiction) is important for Norway as it voids any suggestion that the “grey zone” is an area of joint jurisdiction or a kind of condominium.

144. Ibid., at 82.

145. See e.g. 1977 Canada-US Reciprocal Fisheries Agreement, supra note 130, art. IX (1); 1979 Canada-US Protocol amending the 1953 Convention for the preservation of the halibut fishery of the Northern Pacific Ocean and Bering Sea, 1273 U.N.T.S. 270, Annex, para. 16 (a); 1989 Canada–France Agreement, supra note 130, para. 4(b).

146. See e.g. 1977 Canada–US Reciprocal Fisheries Agreement, supra note 130, art. IX(3); 1979 Canada–US Protocol, supra note 145, Annex, para. 16 (c). The 1989 Canada–France Agreement, supra note 130, is, however, silent on this issue (presumably because the disputed area lay wholly within Canada's EEZ claim).

147. Churchill, supra note 78 at 49.

148. See OUDE ELFERINK, Alex G., The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation (Dordrecht: Martinus Nijhoff, 1994) at 213Google Scholar.

149. Churchill and Ulfstein also speculate on other reasons for such a delay in negotiations, such as Russia's security considerations and buying time negotiation tactic. Churchill and Ulfstein, supra note 134 at 82–3. It was not until 2010 that agreement was reached on the delimitation of the area in the Barents Sea. The delimitation treaty was reportedly signed between Norway and Russia on 15 September 2010. See Office of the Prime Minister (Norway), “Treaty on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean Signed Today”, Press Release No. 118/10 (15 September 2010).

150. See MCDORMAN, Ted L., “Canada-United States Cooperative Approaches to Shared Marine Fishery Resources: Territorial Subversion” (2008–9) 30 Michigan Journal of International Law 665 at 681Google Scholar, considering the 1979 Canada–US Halibut Protocol as a success in protecting the species. See also, Churchill, supra note 78 at 49.

151. The fact that the agreement was initially envisaged to last for one year but has been continuously renewed since then testifies to its effectiveness. See also Churchill, supra note 78 at 46; and Churchill and Ulfstein, supra note 134 at 114, stating that the Norway-Russia Grey Zone Agreement works well.

152. For a succinct history of Canada-US co-operation in halibut before the 1979 Protocol, see BELL, F.H., “Agreements, Conventions and Treaties between Canada and the United States of America with respect to the Pacific Halibut Fishery”, Report of the International Pacific Halibut Commission, 1966, Vol. 50 at 5−22Google Scholar.

153. See “Report by the United States Secretary of State on the 1979 Canada-US Halibut Protocol dated 22 June 1979”, reproduced in part in Marian Lloyd NASH, Digest of United States Practice in International Law 1979 (Washington, DC: U.S. Government Printing Office, 1979) at 1035ffGoogle Scholar.

154. Churchill and Ulfstein, supra note 134 at 65.

155. TRESSELT, Per, “Norsk-Sovjetiske Forhandlinger om Avgrensning av Kontinentalsokler og Økonomiske Soner” [Norwegian-Soviet negotiations on the delimitation of continental shelves and economic zones] (1988) (2–3) Internasjonal Politikk 75 at 84Google Scholar.

156. Agreement Between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, 11 April 1975, 983 U.N.T.S. 3 (entered into force 11 April 1975).

157. These include Northeast Arctic cod, haddock, and capelin. See Churchill and Ulfstein, supra note 134 at 95. For an illustration of the migration patterns of these fish stocks, see at 97.

158. It is noted that the 1975 and 1976 agreements between Norway and Russia endure after the conclusion of the 2010 Delimitation Agreement. See Treaty Between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, Annex 1, art. 1, English translation of the agreement available at www.regjeringen.no/upload/SMK/Vedlegg/2010/avtale_engelsk.pdf.

159. See Kaye, supra note 53 at 148–9, 158, drawing a parallel with the obligation to co-operate in the case of high seas fisheries. For the latter obligation, see also ODA Shigeru, “Fisheries under the United Nations Convention on the Law of the Sea” (1983) 77 American Journal of International Law 739 at 751Google Scholar; FREESTONE, David, “The Effective Conservation and Management of High Seas Living Resources” (1994) 5 Canterbury Law Review 341 at 347Google Scholar.

160. Hey, supra note 49 at 22.

161. Though the provisional boundary arrangements arguably function no less effectively than real boundaries, it is difficult to compare the effectiveness of provisional boundary arrangements and that of grey zone arrangements. On the one hand, a provisional boundary functions no less effectively than a de jure final boundary in mitigating conflicts arising from fisheries. On the other hand, it has long been admitted that maritime delimitation, be it provisional or final, is not a panacea to the question of conserving fish stocks, which are by nature blind to man-made boundaries.

162. It is submitted that a light grey zone arrangement with no clear jurisdictional zone for coastal states is politically improbable.

163. For any grey zone agreement to operate, one critical issue is to delineate the application area. There have been several substantial studies on co-operative arrangement (mostly joint development of petroleum resources) in the SCS, which are instructive in this regard. One solution proposed by Valencia, Van Dyke, and Ludwig, supra note 1 at 205, and Nguyen, supra note 10 at 207, is to adopt the area beyond 200 nautical miles from coastal baselines as the application area. The latter study justifies this solution on the basis that the application area lies wholly within the maritime zones of the twelve features of the Spratly Islands which are considered to meet the criteria of Article 121 of UNCLOS to have an EEZ and continental shelf but not to generate full maritime zones when competing directly against the coastal state's mainland. See Nguyen, supra note 10, chapter 4, particularly at 163ff. The drawback of this solution is that the application area does not cover those features of the Spratly Islands lying within the 200 nautical mile EEZs of the coastal states. A more practical approach is to delineate the application area by connecting the outermost features of the Spratly Islands, that is, to practically draw “archipelagic baselines” around this group of islands. See Valencia, Van Dyke, and Ludwig, supra note 1 at 206. This solution, if standing alone, is not in conformity with UNCLOS. However, such a solution is arguably permissible if one accepts that some features of the Spratly Islands are entitled to an EEZ, thus leaving no high seas in the SCS, and provided that third state interests are protected in a future fisheries arrangement.

164. See NGUYEN Hong Thao, “The Declaration on the Conduct of Parties in the South China Sea” in Bateman and Emmers, eds., supra note 3 at 210, 215, 218Google Scholar.

165. See OXMAN, Bernard H., “The Third United Nations Conference On the Law of the Sea: The 1976 New York Sessions” (1977) 71 The American Journal of International Law 247 at 268Google Scholar.

166. Lagoni, supra note 59 at 360–1.

167. Though arguably as a functional arrangement the real raison d’être of the arrangement is the need to exploit the resource in question.

168. It is explained by a Norwegian official that Norway, based on her successful experience in the North Sea, prefers co-operation in exploring and exploiting oil and gas after delimitation, i.e. cross-border unitization co-operation. Interview with Mr Rolf Einar Fife, Director General of the Department for Legal Affairs of the Norwegian Ministry of Foreign Affairs, on 7 January 2010. The newly concluded Norway-Russia Delimitation Agreement now envisages the conclusion of such an agreement in the future. See Treaty Between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, Annex II, supra note 158. But it is argued that the principal reason is Norway's concern that joint development of oil and gas resembles a condominium. See Willy ØSTRENG, “Delimitation Arrangements in Arctic Seas: Cases of Precedence or Securing of Strategic/Economic Interests?” (1986) 10 Marine Policy 132 at 143Google Scholar; Churchill and Ulfstein, supra note 134 at 68. A similar attitude is adopted by Philippine politicians, who consider part of the Spratly Islands as their territory, thus opposing any co-operative arrangement in the area and refusing to renew the JMSU. See supra note 6.

169. On 18 June 2008, a “Joint Press Statement on the China-Japan Principled Consensus on Joint Development in the East Sea” (Joint Statement) was announced concurrently in Beijing and Tokyo, online: 〈http://www.fmprc.gov.cn/eng/xwfw/s2510/2535/t466632.htm〉. This principled consensus, however, only deals with a small fraction of the overlapping continental shelf between the two countries, deliberately avoiding the area involving the disputed Senkaku/Diaoyutai Islands. For comment, see GAO Jianjun, “A Note on the 2008 Cooperation Consensus Between China and Japan in the East China Sea” (2009) 40 Ocean Development and International Law 291Google Scholar.

170. It is not clear how China defines the Spratly Islands, but according to descriptions in Chinese literature, Chinese perception of the group may not coincide with that of Vietnam. See supra note 1.

171. Valencia, Van Dyke, and Ludwig, supra note 1 at 210–4, 218–21, propose two options for calculating the shares of benefits and costs in a joint development arrangement, one based on the extent of original claims and the other on the length of coastline bordering the SCS. These scholars, however, recognize the inherent difficulties with each option. For the former, the difficulties lie in the fact that China, Chinese Taipei (Taiwan), and Vietnam are not clear with regard to their original claims and that parties would be tempted to exaggerate their claims. For the latter, the disadvantage is that China, given its reduced share in comparison with the former option, has less incentive to participate in such an arrangement.

172. Lagoni, supra note 59 at 361.

173. Certainly, no allocation issue would arise should the parties adopt the white zone approach.

174. For a comprehensive appraisal of Taiwan's status under international law, see CRAWFORD, James R., The Creation of States in International Law, 2nd edn. (Oxford: Clarendon Press, 2006) at 198–221Google Scholar.

175. According to this solution, China and Chinese Taipei (Taiwan) should work out among themselves the division of responsibility, function, as well as the sharing of benefit in such an arrangement. See e.g. Valencia, Van Dyke, and Ludwig, supra note 1 at 209–19. See also Zou, “A New Model of Joint Development for the South China Sea”, supra note 4 at 166–8.

176. For a full account of Taiwan's participation in regional fisheries organizations and the WTO, see SERDY, Andrew, “Bringing Taiwan into the International Fisheries Fold: The Legal Personality of a Fishing Entity” (2005) 75 British Year Book of International Law 183Google Scholar. See also Wang, supra note 7 at 545–7, for an argument that Chinese Taipei (Taiwan) is eligible to participate in fisheries co-operation in the SCS.

177. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, (1995) 34 International Legal Materials 1542.

178. For a chronological description of Taiwan's participation in fisheries management regimes, see HO, Peter S.C., “The Impact of the U.N. Fish Stocks Agreement on Taiwan's Participation in International Fisheries For a” (2006) 37 Ocean Development and International Law 133CrossRefGoogle Scholar.

179. For analyses of the concept of “fishing entities”, see DJALAL, Hasjim, “The Emergence of the Concept of Fishing Entities: A Note”, (2006) 37 Ocean Development and International Law 117CrossRefGoogle Scholar; TSAMENYI, Martin, “The Legal Substance and Status of Fishing Entities in International Law: A Note” (2006) 37 Ocean Development and International Law 123CrossRefGoogle Scholar.

180. See TSENG Huan-Sheng and OU Ching-Hsien, “Taiwan and China: A Unique Fisheries Relationship” (2010) 34 Marine Policy 1156 at 1158Google Scholar.

181. See Sofia WU, “China to Send Fishery Delegation to Taiwan for Talks” Taiwan News (30 June 2009).

182. Compiled from Global Capture Production 1950−2008, online: http://www.fao.org/fishery/statistics/global-production/query/en, query made on 15 July 2010. nb: “F” means FAO estimate from available source of international or calculation based on specific assumptions.

183. Compiled from Commodities 1976−2006, online: http://www.fao.org/fishery/statistics/global-commodities-production/query/en, query made on 15 July 2010.

Figure 0

Table 1Marine fish capture production (in tonnes) in marine areas of six parties to the Spratly Islands dispute in comparison with Asia and the world between 2000−2008.1

Figure 1

Table 2Export value (in thousand US$) of six parties to the Spratly Islands dispute in comparison with Asia and the world between 2000−2006.2