A more serious problem is that this regulation is enforced against Vietnamese fishermen who fish in areas also claimed by Vietnam. In response to this fishing ban, relevant Vietnamese administrations, such as the Ministry of Foreign Affairs and the Vietnam Fisheries Society, haveraised their protests.[6] In particular, the Spokesperson of the Vietnam’s Ministry of Foreign Affairs said “China's unilateral implementation of such fishing ban in the East Sea[7] isa violation of the Vietnamese sovereignty over Hoang Sa (Paracel) archipelago, sovereign rights and jurisdiction for Vietnam's exclusive economic zone and continental shelf, violating the Declaration on the Conduct of Parties in the South China Sea (DOC), further complicating the situation in the East Sea”.[8] This ban was equally challenged by Vietnamese fishermen, who have been continuing their fishing activities offshore during this period.[9] This resulted in theirarrest, detention, beating and seize of catch and confiscation of fishing equipment by Chinese marine enforcement authorities.[10]
In practice, the issue of conservation and management of marine living resources in a disputed areacan be resolved by the conclusion of a fishery agreement between relevant coastal countries. Examples of such agreements include the Convention between Canada and the United States in 1953 (modified by the Protocol of 1979)[11], the Agreement between Sweden and the former-Soviet Union in 1977[12] and the Agreement between Japan and Russia in 1998[13]. This is also a requirement of articles 74 (3) and 83(3) of the United Nations Convention on the Law of the Sea which ask states, pending a delimitation agreement relating to the exclusive economic zone and continental shelf, to “make every effort to enter into provisional arrangement of a practical a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement”.[14]
However, it is very difficult to have a fishery agreement that covers all the areas where there are overlapping claims between Vietnam and China in the North-Western area of the South China Sea as the disputed status of some portions of this area is already an object of disagreement. For instance, China considers that“there is nothing to negotiate” aboutthe Paracel islands[15] and Vietnam has stated that the waters belonging to its exclusive economic zone and continental shelf, at least in the North-Western area of the South China Sea,are not disputed areas[16].
This paper advocates for the establishment of a bilateral network of marine protected areas (MPA) between China and Vietnam in the North-Western part of the South China Sea as a potential solution to this dilemma. The author argues that, for the sake of the preservation of marine living resources in the North-Western part of the South China Sea and the maintenance of good relationship between the two countries, instead of taking unilateral measures, China and Vietnam can work together towards establishing a bilateral MPAs network. Certainly a bilateral network of MPAs between Vietnam and China is just a solution to this dilemma but as it is argued later in the paper, taking into consideration of the existing circumstance, it could be a very effective one.
The paper starts by giving some background information relating to protected areas, MPAs and MPAs network to point out what are the ecological, legal and political advantages of a bilateral network of MPAs, over a unilateral fishing ban. It explains then how MPAs network as a tool for marine conservation is supported by international and regional instruments in which both Vietnam and China are participants. After that, the process of establishing a regional network of MPAs is reviewed with the Sulu-Sulawesi Marine Ecoregion as a case study. At the end, the paper provides perspectives on how such a bilateral network of MPAs between Vietnam and China could be implemented, especially considering the existing dispute between two countries in the North-Western South China Sea.
1. Background Relating to MPAs Network
This section explains the background relating to the concept of MPAs network and gives an account on how a bilateral or regional network of MPAs can be established. For instance, it reviews the definitions of relevant concepts such as protected area or MPA, transboundary MPAs and network of MPAs; their different functions and points out different advantages of a bilateral MPAs network compared to a unilateral fishing ban in a common sea. It states equally the criteria, necessary steps and essential factors for the successful establishment and management of a MPAs network, in particular at the regional level.
Definitions
This sub-section definesrelevantconcepts used in this paper, such as MPAs, network of MPAs and transboundary protected areas:
The most well-known definition of MPAs is proposed by the International Union of the Conservation of the Nature. It defines a protected area in general as “a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values”.[17]This definition is also applicable to MPAs.[18] Under this definition, fishery management areas such as fishery closures or fishery protection zone can only be qualified as MPA if their primary purpose is biodiversity conservation and not fishery management.[19] This position is criticisable as sustainable fisheries also contribute to the protection of the marine resources, in particular of commercially important species. Besides, there is not much difference between a no-take MPA in which fishery is banned and a fishery reserves or fish sanctuary[20].Under the framework of this paper, a fishery reserve established for sustainable fishery is considered as a MPA.
A network or system of MPAs is defined as “a collection of individual marine protected areas operating cooperatively and synergistically, at various spatial scales, and with a range of protection levels, in order to fulfil ecological aims more effectively and comprehensively than individual sites could alone”.[21] Not just any collection of MPAs can constitute a network but they must be located in critical habitats, containing components of a particular habitat type or portions of different kinds of important habitats and interconnected by the movement of species.[22]
A transboundary protected areas is “an area of land and/or sea that straddles one or more boundaries[23] between states, sub-national units such as provinces and regions, autonomous areas and/or areas beyond limits national sovereignty or jurisdiction, whose constituent parts are, especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, managed co-operatively through legal or other effective means”.[24] When a transboundary protected area is used not only for the purpose of protecting the environment but also the promotion of peace, it is called a park for peace or peace park.[25]
It should be noted that there seems to be confusion between network of protected areas, transboundary network of protected areas and transboundary protected area. For instance, sometimes a transboundary protected area can be used to designate a network or a group of protected areas that is established in the border region and straddlesacross the boundary or frontier[26]. Besides, a transboundary network of protected areas can be used to designate a large network of protected areas which cover more than one country (which is not only limited to their boundary or frontier). To avoid confusion, this paper uses the term of “transboundary network of MPAs” to refer to a network of protected areas that is established in the border region and straddles both sides of the boundary orfrontier, while a regional or bilateral network of protected areas refers to a network which cover the territories of more than one country but not limited to the border region.
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[1]Nguyen Dang Thang, “Fishing Ban in the South China Sea: In quest for an alternative solution” [translated from Vietnamese: Lệnhcấmđánhcá ở BiểnĐông: Đitìmmộtgiảiphápkhác”] 2011 8:280 State and Law Review [translated from Vietnamese: TạpchíNhànướcvàPhápluật 76.
[4]Zhen Sun, “South China Sea: Reducing the China-Vietnam tension” (August 8th 2011) RSIS Commentaries No.117/2011.
[5]Nguyen Dang Thang, see supra note 2and GuifangXue, China and International Fisheries Law and Policy (Leiden: MartinusNijhoff Publisher, 2005) 114.
[7]The Vietnamese name for the South China Sea.
[8]“Chinese unilateral fishing ban in the East Sea is a violation of Vietnamese sovereignty” (May 14th 2011) Ministry of Foreign Affairs of Vietnam Spokeperson’s Statement, online: Ministry of Foreign Affairs of Vietnam <http://www.mofa.gov.vn/en/tt_baochi/pbnfn#xnxgHzi2gpGG>, accessed July 26th 2011.
[11]See Convention between Canada and the United Nations for Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, Canada and the United States, March 2nd 1953, 222 U.N.T.S. 77, modified by Protocol amending the Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, Canada and the United States, March 29th 1979, Can TS 1980 No.44.
[12]See Agreement on Mutual Relations in the Field of Fisheries(with Protocol), Sweden and the Union of Soviet Socialist Republic, December 22nd 1977, 1260 U.N.T.S. 220.
[13]See Agreement between the Government of Japan and the Government of the Russian Federation on some matters of cooperation in the field of fishing operations for marine living resources (provisional translation), February 21st 1998, online: Ministry of Foreign Affairs of Japan <http://www.mofa.go.jp/region/europe/russia/territory/edition01/agreement.html>, accessed July 28th 2011; for a more comprehensive analysis about the practice of concluding fishery agreements in disputed areas see Thang Nguyen-Dang, “Fisheries Cooperation in the South China Sea and the (ir)relevance of the sovereignty question” (2012) 2:1 Asian Journal of International Law 1, a draft of the paper can be found at Social Science Research Network, online: SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1871314>, accessed September 22nd 2011 and Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia (Leiden: MartinusNijhoff Publishers, 2004) 177.
[14]United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3, arts 74(3) & 84(3).
[15]Greg Torrode& Minnie Chan, “China stands firm on Paracels in negotiations with Vietnam” (December 12th 2010) South China Morning Post, for details about the Paracels dispute between China and Vietnam see Stein Tønnesson, “The Paracels: The ‘Other’ South China Sea Dispute” (2002) 26:4 Asian Perspectives 145; Monique Chemillier-Gendreau, Sovereignty over the Paracels and Spratly Islands (The Hague: Kluwer Law International, 2000).
[17]N. Dudley, Guidelines for Applying Protected Area Management Categories (Gland: IUCN, 2008) 8.
[18]It is noted that before 2008, IUCN had distinct definitions for protected areas and marine protected areas.
[19]N. Dudley, see supra note19at 56; Sue Wells & Jon Day, “Application of the IUCN Protected Area Management Categories in theMarine Environment” (2004) 14:3 Parks: Protected Area Categories 28 at 34.
[20]From a terminological point of view, many names with different original meaning such as parks, reserves, sanctuaries, closed areas or refugia have been used to refer to those areas with some spatially explicit restrictions. However, “protected area” has emerged as the most commonly used term implying protection of species and communities, see Gary W.Allison, Jane Lubchenko& Mark H. Carr, “Marine Reserves Are Necessary But Not Sufficient for Marine Conservation” (1998) 8(1) Ecological Conservations S79 at S80.
[21]IUCN, Establishing Resilient Marine Protected Area Networks - Making it Happen (Washington, DC: IUCN-WCPA, 2008) 12.
[23]The term “boundaries” used in the definition seems to include also “frontier” and “border”. For the distinction between “boundary”, “frontier” and “border” see infra note 28.
[24]Trevor Sandwith, Transboundary Protected Areas for Peace and Co-Operation, Based on the Proceedings of Workshops Held in Bormio (1998) and Gland (2000) (Gland: IUCN, 2001) 3.
[26]It should be noted that while both boundary and frontier mean an area separating the territories of two countries, a boundary refers to a line meanwhile frontier is used to designate a zone without a delimitation line and border designates the outermost parts of a country, bounded in one side by the national boundary. For the meaning of different terminology such as “boundary”, “border” and “frontier” see Nguyen-Dang Thang, supra note 14; Victor Prescott &Gilian D. Triggs, International Frontiers and Boundaries: Law, Politics and Geography (Leiden: MartinusNijhoff Publishers, 2008), 11 – 12; Douglas M. Johnston, The Theory and History of Ocean Boundary-Making (Kingston: McGill-Queen’s University Press, 1988) 3 and A.O. Cukwurah, The Settlement of Boundary Disputes in International Law (Manchester: Manchester University Press, 1967), 11 – 12.
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