Implementation of the Sino-Vietnamese Fishery Agreement: Mainly Chinese Perspective

doi:10.4236/blr.2013.43014

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Beijing Law Review

2013. Vol.4, No.3, 103-119

Published Online September 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.43014

Implementation of the Sino-Vietnamese Fishery Agreement:

Mainly Chinese Perspective

Yao Huang1, Mi ngming Huang2*

1Faculty of School of La w, Sun Yat-sen University, G ua n gz h ou, China

2School of Law, Su n Yat-sen University, Guangz hou, China

Email: lpshyao@mail.sysu.edu.cn; *hmm-13@163.com

Received June 20th, 2013 ; revised July 23rd, 2013; accepted August 21st, 2013

Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium,

provided the original work is properly cited.

The Beibu Gulf (Gulf of Tonkin) is one of the main fishing grounds for both China and Vietnam. The

Sino-Vietnamese Agreement on Fishery Cooperation in the Beibu Gulf is an important legal instrument to

effectively manage and conserve fishery resources in the Gulf. This article reviews the implementation of

the Agreement, analyzes the main factors attribute to the smooth implementation, discusses the main

problems arising from the implementation and further presents some proposals for improvement.

Keywords: Sino-Vietnamese Fishery Agreement; Implementation; Maritime Delimitation;

Law Enforcement; Institutional Mechanism

Introduction

Nationals and vessels of China and Vietnam have operated

fishing activities in the Beibu Gulf (also called the Gulf of

Tonkin, or the Beibu Bay) for a long history. Fisheries of the

Gulf are of great importance to both countries. However, as the

system of exclusive economic zone (EEZ) was established by

the United Nations Convention on the Law of the Sea of 1982

(UNCLOS), traditional fishing activities in the Beibu Gulf suf-

fered a lot. A considerable number of fishermen from both

countries had to withdraw from their traditional fishing grounds

in the Beibu Gulf, and fishery disputes between the two coun-

tries erupted frequently. Professor ZOU Keyuan pointed out

that, “In the 1980s, due to the deterioration of relations between

the two countries, there were a large number of incidents in-

volving the detention and arrest of Chinese fishing vessels.”1

Even though the relationship between China and Vietnam be-

came normal and went towards smoothly, severe fishery con-

flicts, which caused great damage to the two countries, did not

reduce but still happened a lot in the 1990s.2

Under such circumstances, on the basis of the Sino-Viet-

namese Agreement on the Delimitation of the Territorial Sea,

Exclusive Economic Zone and Continental Shelf between the

Two Countries in the Beibu Gulf (hereinafter referred to as the

Delimitation Agreement) signed on December 25, 2000, the

Agreement on Fishery Cooperation in the Beibu Gulf between

the Government of the People’s Republic of China and the

Government of the Socialist Republic of Vietnam (hereinafter

referred to as the Fishery Agreement or the Agreement)3 was

signed in Beijing on the same day. From 2001 to April 2004,

China and Vietnam negotiated the Supplementary Protocol to

the Fishery Agreement (the Supplementary Protocol). Finally in

April 2004, China and Vietnam signed the Supplementary Pro-

tocol and then the two States respectively ratified the Fishery

Agreement which officially came into force on June 30, 2004.

Under the Fishery Agreement, the contracting parties estab-

lish a Joint Fishery Committee (JFC) to take charge of imple-

menting the Agreement. The JFC promulgated the Regulations

on Conservation and Management of the Fishery Resources in

the Beibu Gulf (the Regulations). China and Vietnam signed the

Regulations in April 2004.

The Fishery Agreement, the Supplementary Protocol and the

Regulations mentioned above are the important normative

documents for China and Vietnam to cooperate in managing,

conserving and utilizing the fishery resources in the Beibu Gulf,

among which the Fishery Agreement is the most important

legal instrument. The Agreement establishes three types of the

agreed water zones including the Common Fishery Zone (CFZ),

Transitional Arrangement Zone (TAZ), Buffer Zone for Small-

scale Fishing Boats, and it also prescribes different fishery

management systems for the agreed water zones. Besides, the

Agreement determines the quantity of the ships, areas and re-

quirements of fishing in various water areas and so on. It estab-

lishes the cooperation framework and operational mechanism

for China and Vietnam in the terms of fishery resources in the

Gulf. The Supplementary Protocol prescribes the transitional

arrangements and constitutes an integral part of the Fishery

*Corresponding author.

1ZOU Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf o

Tonkin,” The International Journal of Marine and Coastal Law 17(2002):

131.

2XUE Guifang, International Fisheries Law and Policy and China’s Prac-

tice (Qingdao : China Ocean University Press, 2007), (in Chinese) 221-224.

3The Agreement is valid for 12 years and will automatically be extended

another 3 years after its expiration. The Chinese version of this agreement is

available at the website of Ministry of Foreign Affairs of the People’s Re-

public of China, last checked September 5, 2012, http://www.fmprc. gov.cn/

chn/gxh/zlb/tyfg/t556668.htm.

Y. HUANG, M. M. HUANG

Agreement. The Protocol is applied to a part of the respective

EEZ of the two countries north of the Common Fishery Zone.

According to Article 11(1) of the Agreement, the transitional

arrangement would be expired 4 years later since The Agree-

ment took effect. The Regulations made specific provisions for

the two countries on the conservation, management and sus-

tainable utilization of the fishery resources in the Common

Fishery Zone of the Beibu Gulf. Under Article 2 of the Regula-

tions, the supervision organs of China and Vietnam are respon-

sible for the supervision and investigation on the fishery activi-

ties and punishment on the illegal fishery behaviors in the

Common Fishery Zone. The coordinated and liaison unit of

China is the Fishery Administration and Fishing Port Superin-

tendency Agencies while that of Vietnam is the Maritime Po-

lice Force.

It’s worth noting that the Delimitation Agreement has pro-

vided a solid foundation for fishery cooperation between China

and Vietnam in the Beibu Gulf since it has successfully delim-

ited the maritime boundary of the two States in the Gulf in-

cluding the boundary lines of the territorial sea, EEZ and con-

tinental shelf.

It has been over 8 years since the Fishery Agreement comes

into effect. The purpose of this article is to review the imple-

mentation of the Agreement, analyze the main factors attribute

to the smooth implementation, discuss the main problems aris-

ing from the implementation, and then put forward suggestions

for improvement.

Practice of Implementing the Fishery Agreement

In the past over 8 years after the entry into force of the Fish-

ery Agreement, what has been done by the contracting parties?

What measures have been taken to implement the Agreement?

We examine the questions from bilateral and unilateral level of

the practice of China and Vietnam on putting into action what

the Agreement provides.

Bilateral Level

For China and Vietnam, the signature and ratification of

the Fishery Agreement created a win-win prospect for them.

Therefore they exert great efforts to cooperate in the field of

fishery management.

Performing Work of the Joint Fishery Committee

To rationally utilize and effectively manage fishery resources,

according to the Fishery Agreement, China and Vietnam estab-

lish a Joint Fishery Committee (JFC) to implement the agree-

ment. The functions of the JFC mainly include the followings:

manage the agreed water zones, consult on matters related to

cooperation, preservation, utilization of fishery resources, adopt

regulations and implementing measures of fishery management,

settle fishery disputes and so on.4

The Fishery Agreement prescribes that the JFC shall hold

one or two meetings annually.5 And in practice, The JFC holds

an annual meeting and two preparatory meetings each year, to

determine the quantities of fishing vessels permitted to operate

fishing activities in the agreed water zones, the plans of joint

inspection and joint surveys on fisheries resources in the CFZ,

and to deal with other relevant issues. Till to August 2012, the

JFC has held 9 annual meetings.

With the work of the JFC, from 2004 to 2009, the total num-

ber of Chinese fishing vessels, which were allowed to fish in

the Vietnamese side in the agreed water zones, was around

5800 ships, and the power amount was about 1 million 4 hun-

dred thousand horsepower. The number of Vietnam were

around 9000 ships and 1 million horsepower6.Since ending the

transitional arrangement in 2008, the JFC became the only in-

stitution which has the decisive power to make arrangement for

fishery production in the Beibu Gulf. The number of fishing

vessels of each party for fishing activities in the CFZ each year

is 1543 boats, and the yearly power amount is 211,391 horse-

power.7 The JFC made decisions on the basis of the allowable

catch, which was based on the results from joint regular surveys

on fishery resources and the impact on respective fishing activi-

ties of both parties, and the need of sustainable development.

On the 9th annual meeting of the JFC, held on August 11,

2012, in addition to the routine session work, China and Viet-

nam reached agreements on the issues of conservation and

management of fisheries resources.8 In recent years, the con-

tinuing increasing number of fishing vessels of Vietnam in the

CFZ aggravates much more burden on fishery resources. There

is a serious trend of over-exploitation of living resources in the

agreed water zones. So China proposed to regulate the exploita-

tion of fishery resources more strictly and conduct a fishing ban

jointly. The representatives of Vietnam gave a positive re-

sponse and considered to report to their government. This is a

progress for Vietnamese side during the implementation of the

Fishery Agreement. And then two sides both agreed to author-

ize the expert groups of fishery resources to discuss and put

forward a specific scheme of the fishing ban, such as the closed

season, the forbidden types of and plans of reduction of fishing

vessels, and submit the scheme to the JFC on the next annual

meeting in 2013. However, whether the Vietnamese response

would get a good result and truly implement depends on the

willingness and actions of its govern ment.

The JFC has done a lot of work since it was established and

made great contribution to manage fishery resources of the

Beibu Gulf, especially the work of fair allocation of fishing

quotas between the contracting parties.

The Joint Marine Inspection

After the Fishery Agreement took effect, relative depart-

ments of China and Vietnam, such as the navy, the fishery ad-

ministration, the coastal guard, etc, have strengthened their

cooperation. On the basis of strengthening supervision and

administration in their respective own water zones, the two

countries’ law enforcement agencies continuously cooperate in

6“The Implementation of the Sino-Vietnamese Fishery Agreement,” China

Fisheries News (in Chines e), June 7, 2010, p. 2.

7More detailed information see: The Fisheries Bureau of Ministry of Agri-

culture,China Fisheries Yearbook (Beijing: China Agriculture Press, 2010)

(in Chinese), 23; China Fisheries Yearbook (Beijing: China Agriculture

Press, 2011) (in Chinese), 22; “Fisheries of the Beibu Gulf are in stable

order,” The Fisheries Research Institute of the Yellow Sea (in Chinese)，

last modified September 14, 2011, http://www.ysfri.ac.cn/Newshow.asp-

showid=1881&signid = 25.htm,; “China and Vietnam strengthen fishery

cooperation in the Beibu Gulf,” Ocean and Fisheries Bureau of Jiangsu

Province (in Chinese), last modified September 3, 2012, http://www.jsof.gov

cn/art/ 2012/9/3/art_131_107323.html.

8“China and Vietnam strengthen fishery cooperation in the BeibuGulf,”

Ocean and Fisheries Bureau of Jiangsu Province (in Chinese), last modified

September 3, 2012, http://www.jsof.gov.cn/art/2012/9/3/art_131_107323. html.

4Article 13.3 o f t h e Fishery Agreement.

5Article 13.4 o f t h e Fishery Agreement.

Copyrig h t © 2 0 1 3 S ci R e s .

104

Y. HUANG, M. M. HUANG

exchanging of and sharing information in the agreed water

zones.

According to the Fishery Agreement, the competent authori-

ties of both parties, if necessary, may coordinate to conduct

joint monitoring and inspection and to handle any breach of the

Regulations.9 In view of the need to strengthen cooperation on

implementation of the Fishery Agreement, China and Vietnam

established a joint marine inspection mechanism of the Beibu

Gulf to conduct joint patrols in the agreed water zones periodi-

cally. Since 2006, the two sides took a joint inspection each

year and sent their fleets to take part in the joint patrol.10 There

is also a meeting after finishing the joint inspection to review

achievements of their action and make next plan. The joint

inspection was conducted by the Chinese Fisheries Administra-

tion Department (its Chinese Pinyin: yuzheng bumen) and the

Vietnamese Maritime Police Command.

Up to April 2012, China and Vietnam have jointly launched

7 joint inspections in the CFZ.11 The main tasks of the joint

inspection include keeping records of fishing activities in the

Gulf, taking necessary measures, such as monitoring, boarding

and inspection, handling any breach of the Regulations, inves-

tigating and dealing with issues involving illegal fishing, res-

cuing the distressed fishermen of the two countries, and carry-

ing out legal education to fishermen.12 The joint inspection

team has educated and encouraged fishermen of both States to

respect the regulations regarding the CFZ.

The mechanism of joint marine inspection is crucial to pre-

serve and utilize fishery resources, to keep the safety and order

of the Beibu Gulf. It shows the sincerity of both parties to com-

ply with and implement the Fishery Agreement, to cooperate

and maintain friendly relations.

The Joint Surveys of Fishery Resources

Under Articles 5, 6 and 17.1 of the Fishery Agreement,

China and Vietnam shall jointly take measures in relation to

preservation, management and sustainable utilization of the

living resources, do joint regular surveys on fishery resources,

and cooperate for fishery scientific research and preservation of

marine living resources in the agreed water zones. To this end,

China and Vietnam establish their expert groups respectively,

as the wisdom tank of the JFC, to facilitate such cooperation, to

take charge of monitoring fishery resources, and to put forward

suggestions for fishery management.13 In order to better grasp

the actual status of fishery resources, to provide more reliable

scientific data for the JFC, the two sides also decided to con-

duct joint surveys on fishery resources every year since October,

2005.14 According to the Fishery Agreement and the specific

survey plans, each party sent their survey ships to the CFZ to

investigate the situation and changes of fishery resources by

using a sample of observations. They also sent their researchers

as observers to work with the other party to ensure all the data

and information collected are reliable and accurate.

Till to June 2010, the two states have completed the joint in-

vestigation task of 2 phases and 17 voyages of fishery re-

sources.15 The contents of the joint survey include: bottom

trawl sampling, fishery environmental monitoring, and obser-

vation of fishing vessel distribution. At the end of each joint

survey, the expert groups of fishery resources will hold regular

scheduled meeting to prepare research plans, review progress

they made, analyze the data collected in the survey, and do

assessment on the situation and changes of fishery resources.

And then the experts will deliver an annual survey report,

which provides the reliable foundation of making conservation

and management plans and technical support to the JFC.

The joint survey of fishery resources is an important measure

to implement the Fishery Agreement. Because when the JFC

determines the quantity of operating fishing vessels, it should

make decision based on the results from joint regular surveys

on fishery resources. Meanwhile, the joint survey provides

reliable information to evaluate the situation and the change of

fishery resources of the Beibu Gulf, and to make appropriate

adjustment of fishery industry and other relevant measures of

fishery manageme nt .

Unilateral Level

In addition to cooperate with each other, China and Vietnam

have taken various measures domestically to implement the

Fishery Agreement according to their own circumstances. In

some degree, it means t hat each party had to take some painful

steps necessary to shrink fishing grounds, cut back fishing

fleets, and to reduce redundant labor in the field of fishery in

order to implement the Agreement.

Chinese Measures

1) Legislative Measures

a) Before the Agreement’s Coming into Force

Before the signature of the Fishery Agreement, the Fisheries

Law of China was amended for the first time according to the

"Decision of the Standing Committee of the National People’s

Congress on the Amendment of the Fishery Law of the Peo-

ple’s Republic of China” at the Eighteenth Session of the

Standing Committee of the Ninth National People’s Congress

on October 31, 2000.16 The important amendments mainly re-

9Article 9. 3 o f t he Fi sh ery Ag ree ment p r ovi des th at “ The co mpeten t au th o ri-

ties of both parties, if necessary, may coordinate to conduct joint monitoring

and inspection and to handle any breach of the regulations laid down by the

Sino-Vietnamese Joint Fishery Committee in the Beibu Gulf concerning

preservation and management of fishery resources.”

10“For the p eace and harmony of th e Beibu Gulf,” South China Sea Region

Fisheries Administration Bureau (in Chinese), last modified September 28,

2006,http://www.moa.gov.cn/sydw/nhyzj/gzdt/200609/t20060928_2110806. htm.

11“The Fish eries Bur eau of Ch ina and t he Marine P olice of Vietnam car ry out j oin

marine inspection together in the Beibu Gulf,” Fisheries Information ofthe Sout

China Sea (in Chinese), last modified April 26, 2012, http://www.nhyzchina.

gov.cn/sites/ MainSite/De tail.aspx? StructID = 3273.

12“The implement ation of the Sino-Vietn amese Fishery Ag reement,” Chin a Fisher-

ies News (in Chinese), June 7, 2010, p. 2.

13“The eleventh meeting of Sino-Vietnamese expert groups of fishery resources o

the Beibu Gulf held in Guangzhou,” South China Sea Region Fisheries Administra-

tion Bureau (in Chinese), last modified December 9, 2009, http://www.moa.gov.cn

sydw/nhyzj/gz dt/200912/ t2009120 7_2110444. htm.

14“The sixt h Sino-Vietnamese jo int survey of fi shery resources of the Beibu

Gulf was completed,” South China Sea Region Fisheries Administration

Bureau (in Chinese), last modified May 11, 2007, http:// www.moa.gov.

cn/sydw/nhyzj/gzdt/200705/t20070511_2110751. htm .

15“The implementation of the Sino-Vietnamese Fishery Agreement,” China

Fisheries News (in Chinese), June 7, 2010, p. 2.

16The Fisheries Law was amended for the second time on August 28th, 2004

after the Fishery Agreement came into force. But the version of 2004 is

almost the same as the one of 2000, except article 16.1, which prescribes

that,“The state shall encourage and support the breeding, cultivation and

opularization of good aquatics. No new aquatic may be popularized unless

it has been examined and approved by the National Committee for Examina-

tion and Approval of Original Breeding and Good Breeding and has been

announced by the fishery administrative department of the State Council.”

The Engli sh version of the Fisheries Law o f China (2004) is available at the

website of the Investment in China, last checked November 5, 2012,

http://www.fdi.gov.cn /pub/FDI_EN/Laws/GeneralLawsandRegulations/Basi

cLaws/t20060620_50950.jsp.

Y. HUANG, M. M. HUANG

ferred to provisions of three parts: Fishing, Increase and Protec-

tion of Fishing Resources, and Legal Liability. These amend-

ments reflected the necessary adjustments to the new circum-

stances of China.

In 2004, to ensure the effective implementation of the Fish-

ery Agreement, China’s relevant authorities, including the cen-

tral or local levels, issued a series of legislative documents on

the implementation of the Fishery Agreement.

The Ministry of Agriculture of the People’s Republic of

China issued several circulars on implementation of the Sino-

Vietnamese Fishery Agreement. The first one was “the Emer-

gent Circular on the Preparation of Implementing the Sino-

Vietnamese Fishery Agreement”17, which was released on June

14th, 2004. This circular emphasized the preparatory work of

the implementation, including allocating fishing quotas to spe-

cific fishing boats, conducting a comprehensive inspection on

those fishing vessels with permission. The inspection focused

on whether the vessel hoisted national flag and was marked

clearly, as well as other relevant certificates. It also required

fishery departments to carry out educational and training pro-

grams, which enable fishermen to consciously abide by the

Fishery Agreement and other important regulations.

The second was the “Circular on Implementation of the

Sino-Vietnamese Fishery Agreement”18, released on June 15th,

2004. It prescribed that fishing vessels entering into the agreed

water zones must obey the Fishery Agreement, the Supplemen-

tary Protocol, and the Fishery Regulations. Those vessels per-

mitted into the Vietnamese waters, especially needed to comply

with the Vietnamese laws. This circular reiterated the overall

requirements for fishing vessels and encouraged citizens to

report illegal fishing activities to competent departments.

The coastal provinces issued similar circulars too. For in-

stances, Hainan Province issued an “Emergent Circular on

Making a Good Preparation for the Implementation of the Sino-

Vietnamese Fishery Agreement”19, released on 23rd June, 2004,

which underscored the management of fishing activities and

established a special leading group to implement the Fishery

Agreement. Also, Beihai city of Guangxi Province made public

the information related to the number of fishing quotas. The

notice of Beibai city, issued on June 30, 2004, promulgated a

specific working scheme, including the application, approval

and publicity of allocating fishing quotas to fishermen.20

b) After the Agreement’s Coming into Force

The General Office of the State Council of China also issued

a circular on strengthening the administration of foreign-related

fishing activities on August 9th, 2004. In this circular, the Gen-

eral Office required the administrative departments for fishery

at various levels shall strictly implement the Fisheries Law, the

bilateral fishery agreements and relevant regulatory provisions

made between China and relevant foreign countries, and

strengthen the law enforcement.21

Because the Fishery Agreement involves the matters of the

management of marine boundary, fishing activities, maritime

supervision arrangements and so on, whether the Fishery

Agreement can be implemented in good faith has great impacts

on the interests of the countries and fishermen. These above

implementary legislative documents played an important role in

effectively implementing the Agreement and making appropri-

ate arrangements for the domestic issues.

2) Executive measures

a) Carry out Propaganda of the Agreement and Occupational

Training

Although the Delimitation Agreement and the Fishery

Agreement had come into effect, many fishermen still could not

abide by the regulations consciously due to economic impetus

and lack of education. Fishery disputes between the two coun-

tries still occur from time to time. If disputes could not be han-

dled properly, they not only cause damages to the fishermen,

but also do harm to the relationships between the two coun-

tries.

In this regard, fishery departments of China have actively

carried out various forms of publicity of relevant legal instru-

ments and educational activities. In 2005, the Ministry of Ag-

riculture of China decided to spend 3 years on educational and

training programs, which mainly aimed at educating the owners,

captains and chief officers of large fishing vessels and gradu-

ally establishing a whole legal system of training and education.

In the next year, legal training programs for fishermen were

carried out by the three coastal provinces, including Guangdong,

Guangxi and Hainan.22 The specific contents of training pro-

grams are some basic knowledge, including the international

law of the sea, the Delimitation Agreement and the Fishery

Agreement, communication and emergency evacuation, safe

production standards and settlements for fishery disputes. The

relevant departments also delivered nearly one hundred thou-

sand copies of important materials, such as “the fishing instruc-

tions in the Beibu Gulf” and “demarcation chart of the Beibu

Gulf” to fishermen from 2004 to 2010.23 Through publicity and

training, most crews of fishing vessels enhanced their legal

awareness gradually, and the number of cases of illegal produc-

tion and fishery disputes dropped significantly. The training

programs not only focused on the rules of fisheries, but also

involved other occupation trainings. Besides, the coastal prov-

inces held many training programs for the law enforcement

17 “Emergent Circular on the preparation of Implementing the Sino- Viet-

namese Fishery Agreement,” Ministry of Agriculture of the People’s Re-

public of China ( in Chinese), last modifi ed June 14, 2004, h ttp://www.moa.

gov.cn/zwllm/zxfb/201007/t20100702_1592501.htm.

18 “The Ministry of Agriculture of China issues the circular on implementing

the Sino-Vietnamese Fishery Agreement,” China Enterprise Integration (in

Chinese), last modified June 15, 2004, http://www. jincao.com/fa/25/law

25.93.htm.

19 “General Off ice o f t he P eop le’s Gov ern ment o f Hai nan P ro vin ce Released

an Emergent Notice on Making a Good Preparation for the Implementation

of the Sino-Vietnamese Fishery Agreement which will take effect soon”, the

Find-Law (in Chinese), last modified June 23, 2004, http://china.findlaw.cn/

fagui/jj/25/110604.html.

20 “The Office of People’s Government of Beihai transmits a Notice on the

Implementat ion Progr am of the Sino -Vietnamese Fis hery Agreemen t issued

by the Beihai Aquatic Products Bureau,” the Law Library (in Chinese) , last

modified June 30, 2004, http://www.law-lib.com/ law/law_view.asp?id =

146449.

21 “The Circular of the General Office of the State Council on Strengthening

the Administration of Foreign-related Fishing Activities”, Law Information

of China, last modified August 9, 2004, http://www.lawinf ochina.com/

display. aspx?lib = law&id = 3713&paycode = 43B0D2C5DD0BCF700

B163F2B0BC078A239848666E049F4051FDF297F7B7AB43E#.

22 See: “Training Work for foreign-related fishing crew of Guangxi is fully

underway,” Fisheries Administration Bureau of the South China SeaRegion

(in Chinese),” last modified July 27, 2006, http://www.moa.gov.cn/sydw/

nhyzj/gzdt/200607/t20060727_2110829.htm;“Hainan Province attaches great

importance to the training work for foreign-related fishing crew,” Fisheries

Administration Bureau of the South China Sea Region (in Chinese), last

modified August 7, 2006, http://www.moa.gov.cn/sydw/nhyzj/gzdt/200608/

t20060807_2110822.htm.

23 “The implement ation of the Sino- Vietnamese Fishery Agreement,” Ch ina

Fisheries News (in Chines e), June 7, 2010, p. 2.

Copyrig h t © 2 0 1 3 S ci R e s .

106

Y. HUANG, M. M. HUANG

officials to strengthen the law-enforcement too.24

At the end of 2009, on a voluntary basis, three provinces of

Guangxi, Guangdong and Hainan accumulatively spent almost

RMB 458 million Yuan to reduce 5,129 fishing boats, to train

around 28,470 fishermen, and partially solved the fishermen’s

livelihoods problems.25

b) Conduct Summer Fishing Ban

Since overfishing led to serious depletion of fisheries re-

sources, China enacted an annual fishing ban (also called mid-

summer moratorium system or closed fishing seasons)26 for two

months in summer in the north-western part of the South China

Sea (including the Beibu Gulf) from 1999 (later, the period of

fishing ban was prolonged to two months and a half). The fish-

ing ban is a kind of customary management method, whose

general purposes are to reduce harvesting pressure, to protect

spawning aggregations and prevent the disturbance of more

highly favored fish species.27 According to the Chinese fishing

ban, any fishing vessel that enters into the regulated areas dur-

ing the banned period would be subjected to punishment and its

catches would be confiscated.

Some positive outcomes result from performing the fishing

ban. Firstly, the fishery resources are given certain time to re-

store or rebuild. Secondly, opportunities for adjusting industrial

structure are provided for the coastal provinces. Take Guangxi

Autonomous Zone for an example, by carrying out the fishing

ban, Guangxi accelerates the adjustment of its fishery industry

structure, and timely eliminates those fishing vessels which do

not meet requirements laid down by the relevant departments.28

As an expert said that the fishing ban is one of the most impor-

tant measures that China took to restore and maintain its marine

living resources and shows China’s image as a responsible

fishing country.29

c) Strengthen Law Enforcement to Control Overfishing and

Combat with Illegal Fishing

Before the Fishery Agreement came into force, China had

made great efforts to control overfishing, and prescribed the

fisheries quota policy and fishing license in its Fisheries Law.

In practice, in order to better fulfill its obligation under the

Fishery Agreement, China enforces the system of fishing li-

cense much more strictly. In recent years, The Ministry of Ag-

riculture of China urged the relevant coastal provinces to for-

mulate and implement fishing vessels scrapping programs to

control fishing capacity30. China gives financial support to op-

erate these programs. To ensure the effective implementation,

some regulations on using this special fund were made31, and

the relevant fishery departments will review the execution of

these programs every year.

Some scholars noted that illegal fishing is a detriment diffi-

cult to eliminate. It not only generates harmful effects on eco-

nomic and social welfares, but also further reduces incentives to

comply wit h rules.32 So, in order to combat with illegal fishing,

China launched the first joint patrol in its own sea areas of the

agreed water zones on the day when the Fishery Agreement

took effect. Then in September 2004, China formally estab-

lished a stable mechanism of joint maritime supervision, which

consists of the Chinese Fisheries Administration Department

(Chinese Pinyin: yuzheng bumen) and the Coastal Guard (Pin-

yin: bianfang haijing), to take maritime joint inspection.33 This

domestic joint supervision team has the similar responsibilities

as the bilateral one, which was constituted by China and Viet-

nam. It also takes ma rine patrols, rescues endangered fishermen,

monitors fishing activities and combats with other illegal ac-

tivities, such as armed robbery at sea. It is worthy of mention-

ing the South China Sea Region Fisheries Administration Bu-

reau (Pinyin: “nanhaiqu yuzhengju”), which is a department of

the Fisheries Bureau of the Ministry of Agriculture. As one of

the major law enforcement agency, the Bureau has two main

objectives. First, it sends fishery administration ships to escort

Chinese fishing vessels when they operate in the agreed water

zones. Second, it prevents trespass and illegal fishing in the

Chinese sea areas by boarding, inspecting and expelling fishing

vessels, and so on. The Bureau plays an important role in im-

plementing the Agreement.

Since 2010, the joint inspection team has increased the

cruising ship from 1 boat to over 2 boats in the daily supervi-

sion, and established a rapid response mechanism to deal with

emergent alarms.34 To effectively minimize foreign-related

fishing conflicts during the law enforcement and avoid the loss

caused by such events, Guangxi Province especially made an

“Emergency Plan for Fore ign-re la ted Fishing” and established a

headquarters for dealing with the emergency of foreign-related

fishing activities.35 In addition, the coastal provinces have car-

ried out special fishing escorting actions (Pinyin: zhuanxiang

huyu xingdong) to strengthen the maritime and port inspection.

For example, Hainan Province strengthened Fisheries Law

enforcement to fight against pirates, robberies, destructive fish-

24 “Concentration on the Annual Propaganda and Popularization of the Fish-

ery Law in the Region of the South China Sea,” South China Sea Region

Fisheries Administration Bureau (in Chinese), last modified December 6,

2007,http://www.moa.gov.cn/sydw/nhyzj/gzdt/200712/t20071206_2110673. htm.

25 “The Implement ation of the S ino-Vietnamese Fis hery Agreement,” Ch ina

Fisheries News (in Chines e), June 7, 2010, p. 2.

26 The government of Vietnam also calls it as fishing holiday season. See

“Vietnam protests Chinese unilateral fishing ban in the East Sea” , available

at the Ministry of Foreign Affairs of Vietnam, last checked October 25, 2012,

http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns12012 3233459/view; The

detailed information of the fishing ban see: “The Ministry of Agriculture o

China released the circular on the 2011 summer fishing ban in the South

China Sea,” Fisheries Administration Bureau of South China Sea Region(i

Chinese), last modified May 13, 2012, http://www.moa.gov.cn/sydw/nhyzj/xzw

/201105/t201 10513_ 2111034. htm.

27 Joshua E. Cinner and Shankar Aswani, “Integrating customary manage-

ment into marine conserva t ion,” Biological Conservation 140 (2007): 204.

28 WU Zhi-de, ZOU Ji an-w ei and FU De, “ Pr obl ems and co un ter measures o

implementing summer fishing closure season in Guangxi Province,” Chinese

Fisheries Economics (i n Chinese) 2 (2009): 16.

29 CUI Lifeng, “Adapt to the new ocean legal system and promote the

healthy development of marine fisheries -- In commemoration of the 30th

anniversary of signing the United Nations Convention on the Law of the

Sea,” China Fisheries News (in Chinese), September 24, 2012, 1.

30 “The Ministry of Agriculture of China urges relevant coastal provinces to

formulate fishing vessels scrapping programs to control fishing ca

acity,”

the NetEase, last modified January 4, 2005, http://news.163. com/50104/3/

197K5IUG0001124T.html.

31“The General Office of the Ministry of Finance and the General Office o

the Ministry of Agriculture issue ‘the regulations on management of using

special fund for fisherman who change their jobs’,” China Fisheries Admini-

stration (in Chinese), last modified November 5, 2003, http://www.moa.gov.

cn/sjzz/yzjzw/fzghyzj/xmdtfzgh/200311/t20031105_2676486.htm.

32 Huiguo YU and Yunjun YU, “Fishing capacity management in China:

Theoretic and practical perspectives,” Marine Policy 32 (2008): 357. In this

article, the authors discuss the issue of fishing capacity management in

China from theoretic and practical perspectives, and analyze the measures

China has taken in detailed.

33 WU Zhuang, “Innovate the mode of joint fisheries inspection of the Beibu

Gulf,” China Fisheries News (i n Chinese), Ju ly 10, 2006, p. 2.

34The Fisher i es Bureau o f Mi ni s tr y of Agricul tu r e, China Fish er i es Year

(Beijing: China Agriculture Press, 2011 ) 134.

35“Guangxi issues emergency plans for foreign-related fishing,” China Fish-

eries News (in Chinese), November 15, 2010, 2.

Y. HUANG, M. M. HUANG

ing activities in particular.36 The fishery administrations of

Guangxi Province have conducted many maritime law en-

forcement actions since May 1, 2011. They launched a number

of comprehensive cruise inspection activities in Chinese own

water areas of the CFZ. Their inspective jobs focus on whether

fishing vessels are marked obviously and correctly, whether

fishing vessels operate fishing activities with necessary and

legal certificates, and using legal fishing methods.37

The Ministry of Agriculture of China promulgated “the Re gu-

lation on Administrative Law Enforcement of Fisheries Inspec-

tion” on the May 22, 2009.38 It aims to gradually establish a

mechanism of all levels of supervi sion and in specti on of fi sherie s

law enforcement, and ensure the implementation of fishery laws

and regulations. This Regulation contains 24 articles, which

cover the subject, principle, content, procedure, and legal liability

of the administrative law enforcement of fisheries inspection.

d) Prioritize Proliferation and Protection of Fishery Resources

China has paid much attention to the issues of marine scien-

tific research, proliferation and protection of fishery resources.

Article 5 of the Fisheries Law of China provides that, “People’s

governments at various levels shall give moral encouragement

or material awards to entities and individuals who make out-

standing contributions to the increase and protection of fishery

resources, to development of fishery production, or to research

in fishery science and technology.” And Part 4 of this Law

especially prescribes the issues of increase and protection of

fishing resources in detailed.

In recent years, the coastal provinces, like Hainan and

Guangxi, have organized many large-scale marine living re-

sources proliferation actions respectively, which produced both

economic and biologic benefits.39 Since 2005, the Bureau of

Fisheries of Ministry of Agriculture has been applying for a

special fund to trace and support assessment of the implementa-

tion and effect of fishery resources proliferation.40 This work

has effectively promoted the development of proliferation. In

2010, China worked on establishment of protected areas, pro-

liferation and construction of artificial reefs actively with in-

vestment of over RMB 85 million Yuan.41

Vietnamese Me a sures

1) Legislative Measures

In 2003, Vietnam promulgated its fisheries law.42 The Law

on Fisheries of Vietnam was adopted on November 26, 2003 by

the XIth National Assembly of the Socialist Republic of Viet

Nam at its 4th session, and took its implementation effect as

from July 1, 2004, almost the same time as the Sino-Vietnam-

ese Fishery Agreement.

In the past, “a lack of capacity and the use of top-down deci-

sion making strategies have further led to uncertainty and mis-

trust of authorities inclined to use coercion and fines to imple-

ment government decisions”43. To change this adverse situation,

Vietnam began its renovation of fishery management by sup-

porting the idea of decentralized management of fisheries in the

Law on Fisheries. This Law on Fisheries of Vietnam authorizes

the local governments more competences and meanwhile more

obligations in fishery management, in case of necessity, and if

obtaining the approval of the Ministry of Fisheries, the People’s

Committee of the provinces or centrally-run cities shall an-

nounce additional contents or measures to make relevant rules

suitable to the actual activities of exploiting resources in their

localities.44 The Final Report of Fisheries and Aquaculture

Sector Study of Vietnam in 2005 (hereinafter referred to as

Final Report 2005) pointed out that the new Law on Fisheries

provides a good basic framework for fisheries management and

the enforcement of the this Law is a step available to the Viet-

namese government to take more effective actions.45

It is crucial that laws be harmonized so that a legislation or

enforcement vacuum can be avoided, as pointed out by Profes-

sor Kuan-Hsiung Wang46. Accordingly, in recent years, Viet-

nam issued the rules for the implementation of the Law on

Fisheries and several decrees related to fishing activities. For

instance, the Decree on Regulations on Penalizing Administra-

tive Violations in the Fisheries Field, which took effect on 15th

May 2010, shall apply to organizations and individuals at home

and abroad that commit administrative violations in the fisher-

ies field in Vietnam and they will be penalized under the provi-

sions of this Decree.47 Also, the Decree on Management of

Fisheries Activities of Foreign Ships in Vietnam’s Sea Areas

took effect on June 1, 2010. This Decree applies to owners of

foreign fishing vessels engaged in fisheries activities in Viet-

nam’s sea areas and concerned agencies, organizations and

individuals, and provides for the conditions, procedures and

authority of granting licenses for fisheries activities; responsi-

bilities of owners of foreign fishing vessels engaged in fisheries

activities in Vietnam’s sea areas, also responsibilities of state

management agencies for fisheries activities of foreign fishing

vessels in Vietnam’s sea areas: examination, control and han-

dling of administrative violations, and complaints and denun-

ciations related to fisheries activities of foreign fishing vessels

in Vietnam’s se a a r eas.48

36 LIANG Zhenqiu, Hainan Yearbook (Haikou: Hainan Year

ook Press,

2011) (in Chinese), 259.

37 “Guangxi obtains good results from escorting action and marine patrol in

the EEZ in 2011,” China Fisheries Administration (in Chinese), last modi-

fied December 9, 2011, http://www.moa.gov.cn/sjzz/ yzjzw/yyzfyzj/zhyyzf/

201112/t20111209_2717509.htm.

38“Regulation on Administrative Law Enforcement of Fisheries Inspection,”

Law Education of China, last modified May 22, 2009, http: //www.chinalawedu.

com/new /1200_22016_ __/2009_6_2 _li4417192 5 5012690024 669.shtml.

39 LIANG Zhenqiu, Hainan Yearbook (Haikou: Hainan Yearbook Press,

2011) (in Chinese), 259; “Proliferation of living resources of the Beibu Gul

was held in Beihai City,” South China Sea Region Fisheries Administration

Bureau (in Chinese), last modified June 16, 2008, http://www.moa.gov.cn

/sydw/nhyzj/gzdt/200806/t20080616_2110613.htm; ZOU Jianwei, LIN

Jiangjin and MU Yongtong, “Review and suggestion on decreasing of ma-

rine fishing vessels & fishers’ quitting fishing in Beihai, Guangxi,” Chinese

Fisheries Economics (i n Chinese) 6 (2007): 63.

40 QIU Yongsong, ZENG Xiaoguang, CHEN Tao, WANG Yuezhong and

YUAN Weiwen, The fishery resources and fishery management of the

South China Sea (Beijing: Ocean Press, 2008) (in Chinese), 226.

41 The Fisheries Bureau of Ministry of Agriculture, China Fisheries Year-

book (Beijing: China Agriculture Press, 2011) (in Chinese), 134.

42 “Law on Fisheries of Vietnam,” in China-Asean Inspection and Quaran-

tine Information Web, last modified November 29, 2010, http://caexpo.

gxciq.gov.cn/html/2010-11/98.htm.

43Derek Armitage, MelissaMarschke, Truongvan Tuyen, “E arly-st age transfo rma-

tion of coastal marine governance in Vietnam?”, Marine Policy 35(2011): 705.

44Article 8.4 of the Law on Fisheries of Vietnam.

45Final Report of Fisheries and Aquaculture Sector Study of Vietnam (Min-

istry of Fisheries and The World Bank, February 16, 2005), (iii), last Octo-

ber 18, 2012, http://siteresources.worldbank.org/INTVIETNAM/Resources/

vn_fisheries-report-final.pdf.

46Kuan-Hsiung Wang, “Bridge over troubled waters: fisheries cooperation

as a resolution to the South China Sea conflicts,” The Pacific Review Vol 14

o.4 (2001): 545.

47“Decree on regulations on penalizing administrative violations in the

fisheries fie l d ”，Authority of Foreign Information Service, accessed October

22, 2012, http://vietnam.vn/ decree-on-regulations-on-penaliing- administra-

tive-violations-in-the-fisheries- field-c1071n20111010095835140.htm.

48“Decree on management of fisheries activities of foreign ships in Viet-

nam’s sea areas”, Authority of Foreign Information Service, last checked

October 22, 2012,

http://moj.gov.vn/vbpq/en/_layouts/printeng.aspx?id=10619.

Copyrig h t © 2 0 1 3 S ci R e s .

108

Y. HUANG, M. M. HUANG

Although these legislative measures apply in national wide,

not only to the Beibu Gulf, they still push forward the imple-

mentation of the Fishery Agreement and have positive impacts

on conserving and managing fishery resources.

2) Executive Measures

Vietnam has also made great efforts to implement the Agree-

ment. Besides diversified cooperation with the government of

China and the Chinese coastal provinces in the Beibu Gulf,

such as Hainan Province49, Vietnam established a subcom-

mittee of the Joint Fishery Committee, which plays a key role

in implementing the Agreement. The sub-committee is required

to make periodical reports on the number of Vietnamese and

Chinese fishing vessels operating in the CFZ, and oversee se-

curity and national defense inspection in this region. It takes a

vast of responsibilities for instructing the implementation of the

Fishery Agreement domestically, holding regular meetings,

focusing on issues concerning the preservation and sustainable

development of marine resources in the CFZ, and bilateral co-

operation in fisheries management. In addition, it processes

reports sent by localities, coast guards, border guards, executive

agencies and the Chinese side, and then make proposals to the

government. The Vietnamese sub-committee is further required

to update the list of Vietnamese fishing ships, which have reg-

istered to operate in the CFZ, and to grant fishing licenses to

Vietnamese ve ssels which meet the conditions set up by fisher-

ies regulations.50

In the fishery sector, “Vietnam is faced with a large number

of small fishing vessels and fishermen which leads to overex-

ploitation of marine resource”.51 Confronting such a severe

situation of recession of fishery resources in the Beibu Gulf,

Vietnam realized that it should take some measures to conserve

and manage the fishery resources. Thus, the Final Report (2005)

emphasized the implementation of the Fishery Agreement and

suggested the government move forward by taking the follow-

ing steps: to establish strategic, closed fishing seasons; to in-

troduce a compulsory logbook system and a license limitation

program; to support scientific research and so on.52 In order to

control overfishing, the Ministry of Fisheries of Vietnam limits

the fishing effort in each fishing ground, and revises the fishing

effort every 5 years. According to the Law on fisheries, the

eligibility for annual fishing licenses of fishing vessels is based

on crew size, engine capacity and gear type.

Due to the decrease of traditional fishing grounds after the

demarcation of the Beibu Gulf, too many fishing boats have to

operate fishing activities and compete with each other in a

much smaller sea areas. In order to minimize and prevent the

conflicts between the small-scale fishing vessels and the large

ones, Vietnam also adopted a sub-regional fishing system,

which allows certain type of fishing vessels enter into certain

sea areas to fish. 53 Vietnam also took other measures to im-

plement the Fishery Agreement. For example, Vietnam has

built a stronger maritime patrolling force and sent more ships to

its own sea areas in the agreed water zones to keep monitoring

and surveillance on fishing activities, and adopted the co-

management mec h anism as an alternative fisheries management

policy to avoid the ineffectiveness in policing or resolving fish-

eries conflicts . 54

Factors Attribute to Smooth Implementation

of the Agreement

By reviewing the practice of implementation, it is not diffi-

cult to see that the management of fishery resources in the

Beibu Gulf has been effective. Generally speaking, there are

some good results obtained in the past 8 years for China and

Vietnam. The most important one is that fishery disputes re-

duced significantly and fishery activities performed orderly.

Before China and Vietnam signed the Delimitation Agree-

ment of the Beibu Gulf, “the lack of an agreed-upon boundary

in the Gulf caused disputes between fishermen from the two

states and presented the opportunity for illegal activities in

maritime areas close to the coasts.”55 Professor Tønnesson said

that he experienced at first hand the deep resentment felt by

Hainanese fishermen towards the Vietnamese government dur-

ing a visit to Hainan in January 2000, because there have been

many incidents in which Hainanese fishermen have been ap-

prehended by the Vietnamese coastguard.56 Even though the

Fishery Agreement was signed in 2000, before it came into

force, some scholars still kept a cautious attitude by questioning

how effectively the agreement would be implemented. And in

practice, conflicts related to fishery between the two countries

still happened a lot. Take the year of 2003 as an example, se-

vere conflicts erupted many times. On September 23, 2003,

Vietnamese armed ships attacked fishing boats of China in the

Beibu Gulf, and there were another 5 Chinese fishing boats

under seizure of Vietnam.57 And in late October of that year,

Vietnam seized Chinese fishing vessels again.58 A statistical

data of 2003 from Beihai Fishery Station of Guangxi Province

showed that 18 fishing vessels of this city were detained by the

authority of Vietnam, and caused direct economic loss over

RMB 1 million Yuan.59

Through the great efforts made by both China and Vietnam,

the situation of fishery disputes changed gradually. With the

53Ma. Carmen A. Ablan and Len R. Garces, “Exclusive Economic Zones

and the Management of Fisheries in the South China Sea ,” In A Sea Change :

The Exclusive Economic Zone and Governance Institutions for Living

Marine Resources, edited by Syma A. Ebbin, Alf Håkon Hoel, Are K.

Sydnes, 142. last checked October 10, 2012, http://link.springer.com/chapter

/10.1007/1-4020-3133-5_9#page-1.

54Robert Pomeroy et al., “Fish wars: Conflict and collaboration in fisheries

management in Southeast Asia,” Marine Policy 31(2007): 6 47.

55Nguyen Hong Thao, “Maritime Delimitation and Fishery Cooperation in

the Tonkin Gulf,” Ocean Development & International Law 36 (2005): 26.

56Stein Tønnesson, “Sino-Vietnamese Rapprochement and the South China

Sea Irritant,” Securit y Dialogue, 34 (2003): 64.

57WANG Mengxia, “Waves are blowing in Northern Ports,” China Ship

Survey (in Chinese), October 2003: 32-34.

58WANG Mengxia, “Reflections over the ‘BeiBuWan Event’,” China Ship

Survey (in Chinese), November 2003 : 31.

59“The Fisheries Evolution of the Beibu Gulf: Employment of Vietnamese

due to Labor Shortage,” the Globa l (in Chines e), last modifiedMay 23, 20 12

http://china.huanqiu.com/border/2012-05/2747257.html.

49“Vietnam, Hainan speed up economic cooperation,” the Vietnam Plus, last

modified September 7, 2009, http://en.vietnamplus.vn/Home/Vietnam-

Hainan-speed-up-economic-cooperation/20097/678.vnplus.

50“Ministry of Foreign Affairs of Vietnam: Vietnam - China Sub- committee

for Fisheries Cooperation operation strengthened,” last mo- dified March 21

2005, http://www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns05

0317085215/view.

51Nopparat Nasuchon, “Coastal management and community management

in Malaysia, Vietnam, Cambodia and Thailand, with a case study of Thai

fisheries management,” Division for Ocean Affairs and the Law of the Sea

Office of Legal Affairs, the United Nations, New York, 2009, 22. last checked

ovember 1, 2012 http://www.un.org/depts/los/nippon/ unnff_programme_

home/fellows_pages/fellows_papers/nasuchon_0809_thailand.pdf.

52Final Report of Fisheries and Aquaculture Sector Study of Vietnam (Min-

istry of Fisheries and The World Bank, February 16, 2005), 43, last checked

October 18, 2012, http://siteresources.worldbank.org/INTVIETNAM/Re-

sources/vnfisheries-report-final.pdf.

Y. HUANG, M. M. HUANG

active measures to prevent and stop illegal fishing activities by

the Chinese government, fishermen of China learned to obey

the Fishery Agreement and other relevant rules in the Beibu

Gulf and foreign-related fishery disputes decreased year by

year.60 In 2007, there is nothing of the occurrence of Chinese

foreign-related fishery case in the Beibu Gulf61 and there were

seldom reports on Sino-Vietnamese fishery conflicts in the

recent years. It seems that the following factors make the im-

plementation of the Agreement to achieve positive results.

The Successful Delimitation of the Maritime

Boundary in the Gulf

Actually, unsettled maritime delimitation results in maritime

disputes, including ones concerning the sovereignty over is-

lands, EEZ and continental shelf. Considering of a fact that “the

establishment of maritime boundaries may often impinge on

traditional fishing activities”62, to avoid the adverse impact of

the demarcation in the Beibu Gulf had on the fisheries in great-

est extent, China insisted to solve the issue of fisheries and the

delineation of the maritime boundary at the same time. After

long-term negotiations, China and Vietnam finally reached

agreements on the issues of the maritime delimitation and fish-

eries cooperation in the Beibu Gulf. The successful delineation

of this maritime boundary creates favorable conditions for fish-

ery management by clarifying the allocation of the CFZ and the

TAZ. Hence, it can avoid the sensible territorial disputes when

implementing the Fishery Agreement. That is to say, as the

Fishery Agreement was signed on the basis of delimitation of

maritime boundary between China and Vietnam, the scope of

the sea areas under the jurisdiction of each party is clear and

specific. On one hand, the fishermen would be more cautious to

operate fishing activities in their country’s jurisdictional waters

without crossing the definite boundary line. On the other hand,

the law enforcement officers of each party would be able to

enforce their domestic laws and regulations in certain sea areas

and avoid unnecessary conflicts over law enforcement. So the

delimitation of maritime boundary is conducive for compliance

with the Fishery Agreement. Once the issue of maritime de-

limitation was settled, the contracting parties could focus on the

issue of utilization, conservation and management of fishery

resources. Without the sovereign dispute in the agreed water

zones, as a number of scholars have stated, in the field of re-

gional or sub-regional maritime cooperation, fisheries coopera-

tion maybe easier to achieve since it is of lower sensitivity and

less cost.63

Having a look at the state practices concerned, “it is natural

that some joint fishing zones were adopted throughout the

world, as provisional arrangements before the final delimita-

tion.”64 However, the Sino-Vietnamese Fishery Agreement is

different of that since it was closely linked to and based on the

maritime delimitation. Thus, in some extent, it is a long-term

arrangement for fisheries of the Beibu Gulf.

Practical Arrangements for Fishery Management

Fishery resources differ from other nonliving resources since

the former are migratory and care nothing about the boundary

divided by human being. Therefore, although the Delimitation

Agreement provides a solid foundation for two parties to coop-

erate in the field of fisheries in the Beibu Gulf, in view of the

specialty of fishery resources, China and Vietnam still need to

make proper and practical arrangements for fisheries. At this

point, the contracting parties did a good job.

The Fishery Arrangements in the Agreed Water Zones

The Fishery Agreement establishes a Common Fishery Zone

and a Transitional Arrangement Zone in the Beibu Gulf, within

which different fishery arrangements were given.

The Common Fishery Zone (CFZ) is the core of fishery ar-

rangements in the Agreement. Fishery resources of the CFZ are

shared, protected and managed by China and Vietnam. The

CFZ is a considerable large co-management sea area. It locates

in the EEZ of the two countries. As a result, China and Vietnam

can apply domestic laws and regulations in their own side.

Fishing vessels from China and Vietnam must meet 12 re-

quirements if they intend to enter into the CFZ to operate fish-

ing activities.65 For example, these vessels have to apply for

fishing permits from their competent authorities of their own

countries and need to be clearly marked. The fishermen have a

duty to write the fishing logbook correctly and submit it to the

competent authorities of their own countries within the pre-

scribed time, in compliance with the Regulations set out by the

JFC concerning fishing equipment, fishing methods and so on.

The quantity of operating fishing vessels for each party in the

CFZ was determined by the JFC annually, as mentioned above.

The special arrangements in the Transitional Arrangement

Zone (TAZ) gave four years for each party to adjust their fish-

ing patterns to the new and changed conditions by reducing

fishing operations year by year.66 Consequently, China and

Vietnam have enough time to offer educational and training

programs to fishermen. At the end of the transitional arrange-

ment, each party has the priority, under the same conditions, to

operate fishing activities in the other’s EEZ.67 Some scholars

believed that the arrangement of gradual reduction of fishing

vessels in the TAZ incorporated provisions for traditional fish-

ing activities and represented the mutual recognition of both

states’ traditional fishing rights.68 Professor ZOU Keyuan be-

lieves that the transitional arrangements impliedly reflect the

traditional fishing rights and can be seen as a partial realization

of the Chinese traditional fishing rights in the Gulf.69 By re-

specting the traditional fishing activities of the other party and

60 WU Zhuang, “Innovate the mode of joint fisheries inspection of theBeibu

Gulf,” China Fisheries News (in Chinese), July 10, 2006, p. 2.

61LIU Yusong, “The five years of the implementation of the Fishery

Agreement: Interview of Wu Zhuang, Director of the South China Sea

Fisheries Administration Bureau of Ministry of Agriculture,” China Fisher-

ies (in Chinese) 7 (2009): 5.

62Huan-Sheng Tseng and Ching-Hsiewn Ou, “The Evolution and Trend o

the Traditional Fishing Rights,” Ocean & Coastal Management 53 (2010):

272.

63See Nguyen Dang Thang, “Fisheries Cooperation in the South China Sea

and the (Ir) relevance of the Sovereignty Question,” Asian Journal of Inter-

national La w 2 (2012): 85.

64Sun Pyo Kim, “The UN Convention on the Law of the Sea and new fish-

eries agreements in North East Asia,” Marine Pol icy 27(2003): 97.

65 “Fishing vessels entering into the agreed water zones of the Beibu Gul

shall comply with 12 new rules (in Chinese)”, News of Dayoo, last modified

June 30, 2004, http://news.dayoo.com/china/gb/content/2004 -06/30/ con-

tent_1610612.htm.

66 Article 11.1 of the Fishery Agreement.

67Article 11.3 of the Fishery Agreement.

68Huan-Sheng Tseng and Ching-Hsiewn Ou, “The evolution and trend of the

traditional fishing rights,” Ocean & Coastal M anagement 53 (2010): 276.

69ZOU Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf o

Tonkin,” 17 International Journalof Marine & Coastal Law 127 (2002):

139-140.

Copyrig h t © 2 0 1 3 S ci R e s .

110

Y. HUANG, M. M. HUANG

postponing the application of EEZ’s system to fishery man-

agement in the Gulf, an immediate impact on the livelihood and

economy of their respective coastal fishermen was avoided.70

In addition to the CFZ and TAZ, the Fishery Agreement also

sets up a Buffer Zone for small-scale fishing boats, which is not

involving fishing activities. As the Buffer Zone is located in the

territorial seas of China and Vietnam, in principle, fishing ves-

sels of one party are prohibited from entering the other party’s

side, because the sovereignty of the coastal state must be re-

spected. However, in view of the small-scale fishing vessels

lack accurate locating devices and may illegally enter by mis-

take, each contracting party, if it finds that small fishing vessels

of the other party conduct fishing activities in its own waters

area, may send a warning, or take necessary measures to order

them to leave its water area, but when so doing, the contracting

party shall restrain its action not to detain or arrest the vessels

in question, nor to impose punishment or use force against

them.71 Any dispute relating to fishing activities within the

Buffer Zone shall be reported to the Joint Fishery Committee

for settlement.

The Characteristics of the Fishery Arrangements in the

Agreed Water Zones

First, the distribution of the fishery resources between China

and Vietnam is fair and reasonable as a whole. The CFZ and

TAZ are located within parts of the EEZs of each party. The

establishment of the agreed water zones takes into account the

premise of mari time de limitat ion, and covers most of high yield

fishing grounds in the Beibu Gulf. Thus, people of the two

countries still can share most of the fishery resources. And

following the principles of equality and mutual benefit, the

quantity of fishing vessels operating fishing activities in the

CFZ is equal for each party. The number of fishing vessels in

each party’s own zone of the TAZ has no much difference too.

This kind of fishery arrangement ensures equality and mutual

benefit, for this reason both parties would be more willing to

comply with and perform the Agreement.

Second, the fisheries arrangements of the CFZ and the TAZ

reflect the system of EEZ, which is stated in the 1982 UN-

CLOS. According to the UNCLOS, a coastal state has exclu-

sive sovereign rights over managing fishery resources in the

EEZ, including the competence to prescribe regulations in rela-

tion to fishery conservation and management, and the power to

enforce these laws and regulations, especially on requiring

foreign fishermen and fishing vessels to comply with the laws

and regulations.72 Generally speaking, the competence of pre-

scription can be divided into two kinds. The first kind relates to

the prescription of conservation and management measures

which may be applied to both national and foreign fishermen.

The second one concerns specifically the terms and conditions

of foreign fishing vessels’ access to the surplus of the living

resources of the EEZ.73 At the same time, the coastal state may

enforce the regulations for foreign vessels fishing in its EEZ by

taking measures including boarding, inspection, arrest and judi-

cial proceedings.74 Such a broad competence enables the

coastal states to adopt the fishing management strategy best

suited to its needs.75 Under the provisions of the UNCLOS, the

Fishery Agreement provides that each party has jurisdiction

over the nationals and fishing vessels of both parties in their

own water areas of the CFZ and the TAZ, in line with the Fish-

ery Regulations and domestic laws of China and Vietnam on

preservation and management of fishery resources.76 In terms

of domestic legislation, the Fisheries Law of China added new

provisions that regulate nationals and fishing vessels of foreign

countries. For instance, the Law prescribes that foreigners and

foreign fishing vessels must obtain permission from the rele-

vant competent departments prior to entering Chinese water to

carry out fishing activities, and must observe Chinese laws and

other relevant regulations.77 It also imposes legal liabilities on

foreign fishermen and fishing vessels for violations.78 Similarly,

the Law on Fisheries of Vietnam stipulates that those who

commit acts of violating the provisions of this Law shall be

administratively sanctioned or examined for penal liability; if

causing damage, they must pay compensation according to the

law provisions.79 The foreign fishing vessels entering to operate

in Vietnam’s seas must have fishery activities permits granted

by competent Vietnamese State bodies and observe the relevant

laws. If these vessels violate the laws and regulations, they shall

be handled according to the provisions of Vietnamese laws.80

Third, adopting the principle of coastal state’s jurisdiction

instead of the principle of flag state control is a significant

characteristic of the Fishery Agreement. “The EEZ regime has

meant a move away from open access to resources and regula-

tion based primarily on flag state jurisdiction, to near-exclusive

coastal state access to resources and regulation based primar-

ily-though not exclusive-on coastal state jurisdiction.”81 As the

maritime boundary has been clearly partitioned, the coastal

state control shall apply within the EEZs of the coastal state.

China also concluded fishery agreements with Japan and South

Korea respectively. The Sino-Japanese Agreement and the

Sino-South Korean Agreement applied the flag state control.

Thus, if one state discovers a violation by the other party’s

vessels, it could only inform the flag state but not able to settle

this violation immediately. And all matters regarding enforce-

ment and punishment shall leave to the flag state.82 In this re-

gard, some violations and illegal activities would not be dealt

with timely or even escaped from punishment. Moreover, as a

result of the flag state control, “even if joint monitoring and

73See M. Dahmani, The Fisheries Regime of the Exclusive Economic Zone

(Dordrecht: Martinus Nijhoff Publishers, 1987), 82.

74Article 73 of t he UNCLOS.

75R.R. Churchill and A.V. Lowe, The Law of the Sea (Third edition) (Man-

chester: Manchester University Press, 1999), 289.

76Article 9 of t he Fishery A greement.

77Article 8 of the Fish eries Law of China.

78Article 46 of the Fisheries Law of China.

79Article 58.1 o f the Fisheries Law of Vietnam.

80Article 50 of the Law on F i sh eries of Vietnam.

81R.R. Churchill and A.V. Lowe, The Law of the Sea (Third edition) (Man-

chester: Manchester University Press, 1999), 176.

82Nguyen Hong Thao, “Maritime Delimitation and Fishery Cooperation in

the Tonkin Gulf,” Ocean Development & International Law 36 (2005): 31.

70Huan-Sheng Tseng and Ching-Hsiewn Ou, “The evolution and trend of the

traditional fishing rights,” Ocean & Coastal Management 53 (2010): 277;

guyen Hong Thao and Ramses Amer, “Managing Vietnam’s Maritime

Boundary Disputes,” Ocean Development & International Law 38 (2007):

313; Ramses Amer and Nguyen Hong Thao, “Vietnam’s Border Disputes:

Legal and Conflict Management Dimensions,” 12 Asian Yearbook of Inter-

national Law 111 (2005-2006): 121. In the latter two articles, the authors

held the same idea that although the Beibu Gulf was successfully demar-

cated

ut the application of the EEZ system to the fisheries regime

was delayed in order to minimize the economic dislocation of the two

States.

71Article 12.2 of the Fishery Agreement.

72Article 62.4 of the UNCLOS.

Y. HUANG, M. M. HUANG

surveillance do take place, a law enforcement officer of one

party would not be able to take an initiative role for its own

enforcement purpose when he/she is on board a fishing vessel

of the other party. So only an indirect form of co-operation in

enforcement is possible.”83 On the contrary, the Sino- Viet-

namese Fishery Agreement, based on the jurisdiction of the

coastal state, provides that the competent authorities of the

contracting parties have the right to monitor and inspect fishing

activities, to impose punishment on the fishing vessels which

enter its own water area in the CFZ without permission, or with

permission but conduct illegal activities other than fishing ac-

tivities. As a result, the abandonment of the “flag state control”

doctrine ensures the compliance of fishermen and improves the

effectiveness of the Agreement.84

Forth, fishery management is strict and complemented with

comprehensive supporting measures. Article 7.1 of the Fishery

Agreement stipulates explicitly that the contracting parties shall

carry out the licensing system for fishing activities conducted

by their own fishing vessels in the CFZ; fishing permits shall be

issued in accordance with the quantity of fishing vessels in the

current year determined by the JFC, and the names of the fish-

ing vessels granted permits shall be notified to the other party.

This provision is conducive not only to control the fishing in-

tensity in the Common Fishery Zone and alleviate the fishing

pressure, but also to law enforcement. In contrast, the Sino-

Japanese and the Sino-South Korean Fishery Agreement only

provide that the competent authorities of the contracting parties

may grant fishing permits to nationals and fishing vessels of the

other party.85 Although the latter two also prescribe licensing

system for fishing activities, they are very different from the

Sino-Vietnamese Fishery Agreement in two aspects. First, the

fishing license of the Sino-Vietnamese Fishery Agreement is

clearly "limited". Neither China nor Vietnam can grant fishing

permits exceeding the quantity which was determined at the

annual meeting of the JFC. Second, the quantity of fishing li-

censes of the CFZ is not determined by the contracting parties,

but by the JFC, while respecting to both parties, also limits their

excessive discretion. At the same time, there are other corre-

sponding measures to supplement the fishing license system.

For example, under Article 7.2 of the Agreement, the contract-

ing parties shall be obliged to educate and train their fishermen

who conduct fishing activities in the Common Fishery Zone.

Stable and Orderly Institutional Mechanism for

Implementation

According to the Fishery Agreement, the two parties estab-

lished a Joint Fishery Committee to implement the Agreement.

The JFC consists of two representatives respectively appointed

by both parties and some committee members. It was author-

ized with a wide range of powers to deal with matters related to

the conservation and management of fishery resources. It is to

be noted that, in some extent, “the JFC has decisive power in

handling all the issues regarding the bilateral co-operation.”86

As we mentioned above, the JFC determines the quantity of

fishing vessels of each party entering into the Common Fishery

Zone annually. That is to say, it has the final decision on fishery

production arrangement and the distribution of fishery re-

sources. As for settlement of fishery disputes, the Fishery

Agreement explicitly states that the JFC can settle those hap-

pened in the Buffer Zone. And according to the Fishery Regu-

lations, fishery disputes which can not be settled on the scene,

shall be solved by the executive agencies of the contracting

parties, or submit to the JFC for settlement.87

The mechanism of decision-making of the JFC follows the

principle of fairness and equality, stipulating that all the pro-

posals and decisions of the JFC shall be subjected to consensus

of the representatives of the contracting parties. It is very im-

portant that one party could not make its own decision on those

issues related to fishery management but consult and cooperate

with the other party. Through the mechanism of consultation of

the JFC, China and Vietnam could exchange their views and

notify each other promptly of the relevant circumstances and

the way in which the issue has been handled.88

To fulfill its functions, the JFC did a lot of work, among

which an important one is adopting the Fishery Regulations

according to the Agreement. The Fishery Regulations prescribe

the specific measures of conservation and management in the

CFZ and the legal liabilities for violations. All nationals and

fishing vessels shall comply with the Regulations.89 The al-

lowable behaviors and forbidden behaviors are provided in

detailed. By prescribing the legal liabilities of violations, both

the fishermen and law enforcement officers would be able to

expect for their behaviors and the consequences so that they

would be more conscientious to obey the Agreement and the

Regulations. We can say that most bilateral efforts were made

by or with the help of the JFC. The smooth operation of the

JFC is indispensable to the effective implementation of the

Fishery Agreement.

Under the framework of the JFC, China and Vietnam also

establish a talking mechanism for consultation and their own

expert groups of fishery resources to provide assistance for

implementation of the Fishery Agreement.90 The expert groups,

as the wisdom tank of the JFC, deliver annual survey report of

fishery resources to the JFC. On the basis of the reliable report,

the JFC could make more rational and scientific decisions. With

the institutional arrangements, the management of fishery re-

sources was executed effectively in a relative stable way.

For any coastal state with a sizeable EEZ, proper enforce-

ment of its fishery regulations in its EEZ presents a consider-

able challenge in terms of resources and technology. For de-

veloping countries these problems are particularly acute.91

Since both China and Vietnam are developing countries, there

is an urgent need for these two countries to cooperate in moni-

toring and surveillance of fishing vessels by exchanging infor-

mation and exploring the possibility of joint surveillance and

87Article 11 of the Fishery Regulations.

88XUE Guifang, “Improved Fisheries Co-operation: Sino-Vietnamese Fish-

eries Agreement for the Gulf of Tonkin,” The International Journal of Ma-

rine and Coastal Law, 21 (2006): 226.

89Article 1 of the Fishery Regulations.

90“The implementation of the Sino-Vietnamese Fishery Agreement,” China

Fisheries News (in Chinese), June 7, 2010, p. 2; LI Yan, “Smooth Imple-

mentations of the Bilateral Fishery Agreements during the 11th Five-year

Plan,” China Fisheries News (in Chi nese), June 20, 2011, p. 2.

91R.R. Churchill and A.V. Lowe, The law of the sea (Third edition) (Man-

chester: Manchester University Press, 1999), 293.

83Sun Pyo Kim, “The UN convention on the law of the sea and new fisheries

agreements in North East Asia,” Marine Policy 27(2003): 103.

84XUE Guifang, “Improved Fisheries Co-operation: Sino-Vietnamese Fish-

eries Agreement for the Gulf of Tonkin,” The International Journal of Ma-

rine and Coastal Law, 21 (2006): 228.

85Article 2.2 of the Sino-Japanese and the Sino-South Korean Fishery

Agreement..

86XUE Guifang, “Improved Fisheries Co-operation: Sino-Vietnamese Fish-

eries Agreement for the Gulf of Tonkin,” The International Journal of Ma-

rine and Coa s tal Law 21 (2006): 224.

Copyrig h t © 2 0 1 3 S ci R e s .

112

Y. HUANG, M. M. HUANG

reciprocal enforcement. To this end, based on their actual cir-

cumstances, China and Vietnam developed a cooperative me-

chanism in practice. For example, China and Vietnam estab-

lished a steady mechanism to take joint monitoring and inspec-

tion, which is a development of the Agreement.

The joint monitoring and inspection reaffirms the efforts

made by China and Vietnam to implement the Fishery Agree-

ment and contributes to strengthening the mutual understanding

of both sides.92 Through the joint inspection, the relevant de-

partments of the two countries set up a good communication

and coordination mechanism to carry out the law enforcement

under the principle of reciprocity. The occurrence of illegal

fishing and other crimes, such as armed robbery at sea, de-

creases dramatically, and most fishing vessels operate orderly

and peacefully in the agreed water zones. In general, the joint

inspection mechanism makes the joint enforcement become

transparent, legal, and orderly, and also enhances mutual trust

and understanding and reduces conflicts between China and

Vietnam.

It is to be noted that effective fisheries management can

eventually only be achieved if initial efforts in negotiation lead

to a more permanent and structured framework for coopera-

tion.93 Hence, the stable and orderly institutional arrangements,

which take the JFC as the centre and couple with other coop-

erative mechanisms, are of extraordinary significance to effec-

tively implement the Agreement.

Comprehensive Law Enforcement with Moderate

Restraint

Enforcement is the process of invoking and applying au-

thoritative prescriptions.94 It is designed to compel obedience to

the rules. In the context of fisheries it means the process by

which compliance by fishermen and fishing vessels with fish-

eries laws and regulations is ensured. This process involves two

kinds of activities, which are preventive activities and activities

refers to the means available to punish violations .95 The range

of preventive activities includes legal training and publicity,

and the operation of surveillance, stopping and boarding vessels,

search or inspection, reporting. The second kind involves arrest

or seizure of fishermen and fishing vessels, detention, and for-

mal application of law by judicial or other process, including

imposition of sanctions. In the previous part, we have discussed

about the measures taken by the contracting parties, which

aimed at the furtherance of implementing the Fishery Agree-

ment. These measures are comprehensive. For instance, China

performed publicity of the Agreement and occupational training

for fishermen, and established joint marine inspection mecha-

nism both domestically and bilaterally with Vietnam, and so on.

China and Vietnam strive to minimize conflicts and tension

and refrain themselves, as has been the prevailing policy of deal

with bilateral relations between the two countries.96 Mutual

restraint is especially emphasized in the Buffer Zone which

requires the contracting parties restrain its action not to detain

or arrest the small-scale vessels in question, nor to use force

against them. Although the Fishery Agreement adopts the

coastal state control in fishery management within the TAZ and

CFZ, China and Vietnam showed self-restraints in dealing with

foreign-related fishery disputes too. The Regulations require

that public servants should be strictly implement law enforce-

ment in accordance with the provisions of relevant laws and the

Regulations, and not use force unless their personal safety is

threatened.97

China especially emphasizes the mutual restraint on the use

of force in settling fishery conflicts with Vietnam. Mutual re-

straint of law enforcement is consistent with the stance of China

that relevant countries should keep necessary self-restraint and

avoid using of force in dealing with fishery disputes.98Usually,

China shows its sincerity and self-restraint when it dealt with

illegal fishing acts which were conducted by foreign fishing

vessels to avoid unnecessary conflicts. The normal methods

that China often uses include observation, keeping records,

expelling, boarding, and escorting.99 Depending on the severity,

China gives different punishments. Fishing vessels conducting

severe illegal activities will be seized or detained. The boats,

fishing catches and tools will be confiscated, in addition to a

fine.100 When the joint patrol team of China detects illegal fish-

ing activities, the involved vessels will usually be punished

with confiscation of catches and fishermen have to sign a guar-

antee of not conducting illegal actions again. If the illegal ac-

tion is slight, the vessels will be only expelled out of Chinese

sea areas.101

There was a Chinese case known as “The First Case”. On

August 22, 2004, law-enforcement officials of the fishery ad-

97Article 19 of the Fishery Regulations.

98China stated that only when the personal safety of the authorized inspect-

tors whose authorization has been duly verified is endangered and their

normal inspecting activities are obstructed by violence committed by crew

members of fishermen of the fishing vessel under inspection, may the in-

spectors take appropriate compulsory measures necessary to stop such vio-

lence. It s h o ul d be emphasi zed t h at t he action of force b y t he i n s p ect ors shall

only be taken against those crew members or fishermen committing the

violence and must never be taken against the vessel as a whole or other crew

members or fishermen. See “Agreement for the Implementation of the Pro-

visions of the United Nations Convention on the Law of the Sea of 10 De-

cember 1982 relating to the Conservation and Management of Straddling

Fish Stocks and Highly Migratory Fish Stocks,” available at Division for

Ocean Affairs and the Law of the Sea, last cheked November 23, 2012,

http://www.un.org/Depts/los/convention_agreements/fish_stocks_agreement

declarations.htm#CHINA.

99The information about the detainment and expelling the trespass and illegal

fishing every year see: The Fisheries Bureau of Ministry of Agriculture,

China Fisheries Yearbook (Beijing: China Agriculture Press, 2005) (in

Chinese), 143; The Fisheries Bureau of Ministry of Agriculture, China

Fisheries Yearbook (Beijing: China Agriculture Press, 2007) (in Chinese),

29; The Fisheries Bureau of Ministry of Agriculture, China Fisheries Year-

book (Beijing: China Agriculture Press, 2008) (in Chinese), 147; The Fish-

eries Bureau of Ministry of Agriculture, China Fisheries Yearbook (Beijing:

China Agriculture Press, 2009) (in Chinese), 36.

100“The South China Sea disputes: how many reefs are there? – five years o

implementation of the Sino-Vietnamese Delimitation Agreement,” Nanfang

Weekend (in Chinese), last modified July 9, 2009, http://www.infzm.com/

content/31142; “Chinese Fishery Administration investigated and punished

two Vietnamese Fishery Vessels with illegal behavior,” Yinzhou News (in

Chinese), last modified April 21, 2012, http://yz.cnnb.com.cn/system/

2012/04/21/010270988.shtml.

101“Chinese Fishery Administration and the Maritime Police held a joint

marine patrol in the Chinese seas in the Beibu Gulf,” South China Sea Re-

gion Fisheries Administration Bureau (in Chinese), last modifiedJuly 8,

2009,

92“Vietnam, Chi na i nsp ect jo int f ishing ar ea,” Min ist ry of Forei gn Aff airs o

Vietnam, last modified February 10, 2007, http://www.mofa.gov.vn/en/nr

040807104143/nr040807105001/ns071001093343/view.

93Erik Jaap Mol enaar, “The Con cept of ‘Real In terest’ an d Other Aspects o

Co-operation through Regional Fisheries Management Mechanism,” 15

International Journal of Mari ne & Coastal Law 475 (2000): 484.

94William T. Burke, The New International Law of Fisheries: UNCLOS

1982 and Beyond (New York: Oxford University Press, 19 9 4), 303.

95M. Dahmani, The Fisheries Regime of the Exclusive Economic Zone

(Dordrecht: Martinus Nijhoff P ublishers, 1987), 83-84.

Ramses Amer and Nguyen Hong Thao, “Regional Conflict Management:

96Challenges of the Border Disputes of Cambodia, Laos, and Vietnam,”

Austrian Journal of South-E ast Asian Studies 2:2 (2009): 71.

Y. HUANG, M. M. HUANG

ministration of China found 4 Vietnamese fishing boats without

marking, operating fishing activities in Chinese sea area of the

CFZ. The Chinese officers boarded the boats and took inspec-

tion. After investigation, the 4 Vietnamese fishing boats were

verified of illegal fishing. They conducted fishing without legal

fishing license, and illegally crossed the demarcation line by

entering Chinese water. According to the Fishery Agreement

and Chinese national law, Chinese fishery department made a

decision on punishment: each ship shall be fined RMB 150,000

Yuan and all the catches shall be confiscated. In the execution

of punishment, taking into account the practical difficulties of

Vietnamese fishers, Chinese fishery department decided not to

confiscate the net, and reduced the fine to RMB 125,000

Yuan.102

As for Vietnam, it also reacts in a similar way in some cases.

Some Chinese fishermen said they feel much safer in the Beibu

Gulf since the Fishery Agreement took effect.103 As Vietnam-

ese scholar Nguyen Hong Thao explained that the principle of

self-restraint has been proposed and well exercised by Vietnam

in handling relations with other countries in the region of South

China Sea.104

The Positive Attitude of Dealing with Bilateral

Relations

After the entry into force of the Agreement, China and Viet-

nam constantly summarize and evaluate the implementation,

and timely make necessary adjustments to improve their work.

Both countries reiterated over and over again that they shall

continue to cooperate closely, implement the Sino-Vietnamese

Delimitation Agreement and the Fishery Agreement, actively

explore the mode of joint marine patrol and inspection and the

joint survey of fishery resources in the Beibu Gulf, and promote

the establishment of a hotline between two countries fishery

departments.105

They show their efforts to cooperate and develop a friendly

relationship, and the commitments to reduce friction and in-

crease mutual trust. In the Joint Statement between China and

Vietnam (2011), the two States agreed to strengthen military

cooperation by increasing contacts between high-ranking offi-

cers and establishing a hotline between their respective defense

ministries.106 They also agreed to continue to hold joint marine

patrols in the Beibu Gulf, and strengthen mutual visits and co-

operation between their military warships. At the 5th meeting

of the Guiding Committee for Bilateral Cooperation between

the two countries in September 2011, they reached agreements

on many fields, including commitments to consolidate and

develop their traditional good-neighborly friendship, to streng-

then high-level communication and mutually beneficial coop-

eration in various fields, to properly handle sensitive issues and

solve disputes.107

On 11th October, 2011, China and Vietnam signed the

“Agreement on basic principles guiding the settlement of mari-

time issues between the People’s Republic of China and the

Socialist Republic of Vietnam”. This agreement has positive

impacts on further preservation of fishery resources of the

Beibu Gulf by reaffirming that the two countries shall cooperate

in less sensitive fields, including marine environmental protec-

tion, scientific research, search and rescue, disaster reduction

and prevention. Both sides also agreed to set up a hotline con-

tact mechanism to allow them to promptly communicate and

properly deal wit h ma ritime issues.108

It is not difficult to draw a conclusion that since the late

1990s, China and Vietnam have placed much importance on

building good relations and continue to minimize tension

caused and refraining from escalating it, as has been the pre-

vailing policy of these two countries.109 By doing so, the cur-

rent mechanism of coordination and cooperation in fishery

management has been consolidated.

Main Problems and Suggestions for

Improvement

Main Problems

Firstly, the conservation measures are insufficient. As we all

know, the fishery management not only deals with the exploita-

tion of fishery resources, but also contains the conservation

measures for fishery resources. By reviewing the Fishery

Agreement and its implementing practice, we can say that the

current mechanism of fishery management in the Beibu Gulf

pays too much attention to the exploitation and utilization of

fisheries, and leaves little room to the conservation. There are

only a few provisions involving the conservation measures in

the Fishery Agreement. Although the Joint Fishery Committee

adopted the Fishery Regulations which contains some particular

provisions on conservation, in practice, too few measures in

relation to conservation of fishery resources were taken jointly

by both contracting parties. Similarly, although the Fishery

Agreement imposes an obligation on the contracting parties to

cooperate in scientific research for fisheries.110 The two States

gave little response in the bilateral cooperation except the joint

surveys of fishery resources and some small-scale proliferation

activities.

102“Chinese Fishery Administration Investigated and Punished the Illegal

Vietnamese Fishery Vessels for the First Time,” China Fisheries News (in

Chinese), October 11, 2004, p. 1.

103“The Fisheries Evolution of the Beibu Gulf: Employment of Vietnamese

due to Labor Shortage,” in the World Wide Web (in Chinese), last modified

May 23, 2012, http://china.huanqiu.com/border/2012-05/2747257.html.

104Nguyen Hong Thao, “Vietnam and the Code of Conduct for the South

China Sea,” Ocean Development & International Law 32 (2001): 1 17-118.

105See “Joint Statement between China and Vietnam(2011),” the Central

People’s Government of the People’s Republic of China (in Chinese), last

modified October 15, 2011, http://www.gov.cn/jrzg/2011-10/15/content_

1970444.htm; “Joint Statement between China and Vietnam(2008),” Minis-

try of Foreign Affairs of the People’s Republic of China (in Chinese), last

modified October 25, 2008, http://www.fmprc.gov.cn/chn/pds/ziliao/zt/

ywzt/2008zt/dqjyosnhy/t528168.htm; “Joint Press Communiqué (2007),”

Ministry of Foreign Affairs of the People’s Republic of China (in Chinese),

last modified July 18, 2007, http://www.fmprc.gov.cn/chn/gxh/wzb/zxxx/

t320502.htm,.

106“China, Vietnam agreed to strengthen military cooperation,” Reuters (in

Chinese), last modified October 17, 2011,,http://cn.reuters.com/article/

wtNews/idCNCHINA-5059720111017.

107“The 5th meeting of the Guiding Committee for bilateral cooperation

etween China and Vietnam was held in Hanoi,” Sohu News (in Chinese),

last modified September 6, 2011, http://roll.sohu.com/20110906/n3185612

92.shtml.

108See “Agreement on Basic Principles Guiding the Settlement of Sea Issues

between Vietnam and China,” The Central People’s Government of the

People’s Republic of China (in Chinese), last modified October 12, 2012,

http://www.gov.cn/jrzg/2011-10/12/content_1966682.htm

109Ramses Amer and Nguyen Hong Thao, “Regional Conflict Management:

Challenges of the Border Disputes of Cambodia, Laos, and Vietnam,”

Austrian Journal of South-East Asian Studies 2 (2009): 70-71.

110Article 17 of the Fishery Agreement imposes an obligation of that the

contracting parties shall cooperate for fishery scientific research and pres-

ervation of marine living resources in the agreed water zones.

114

Y. HUANG, M. M. HUANG

Secondly, the Fisheries Regulations stipulates that China and

Vietnam shall carry out a fishing ban in the CFZ, and the im-

plementation measures will be set down by the JFC.111 How-

ever, the provision of fishing ban has not been executed very

well in practice. China conducted the fishing ban in the Chinese

sea areas in the South China Sea (including parts of the Beibu

Gulf) since 1999 and received some positive results. The prac-

tice has proved that fishing ban plays a great role in promoting

and restoring the fishery resources.112 However, the positive

achievements are difficult to maintain. As many fish species are

migratory stocks, they do not care about the political bounda-

ries made by human beings. Therefore the two States must

cooperate to conserve and protect the fishery resources. But no

corresponding efforts have ever made by the Vietnamese

side.113 Even worse, Vietnam has vociferously protested for the

Chinese fishing ban by arguing that it affects the livelihood of

Vietnamese fishermen.114 It is a fact that when the Chinese

fishers observe the fishing ban, Vietnamese fishers still conduct

fishing activities in the agreed water zones.115 Some Chinese

scholars were dissatisfiedly pointed out that such uncooperative

behaviors would certainly do harm to fishery management and

the relationship between the two countries.116

Thirdly, what is very worrying is overexploitation of the

fishery resources. The current situation of fishery resources of

the Beibu Gulf is not so hopeful. The fact that excess fishing

capacity is one of the leading causes of overfishing has been

widely recognized.117 In the 9th meeting of the Joint Fishery

Committee in 2012, the Chinese government pointed out that

there is a recessionary and over-exploited trend of fishery re-

sources in the Vietnamese side of the Common Fishery Zone,

for the raising number of large fishing vessels of Vietnam. In

regard to Vietnam, within its municipal fishery, entry of fishing

activities is not restricted except for certain imposed require-

ments, such as licensing of boats, although payment is minimal.

Uncontrolled entry into the fishing sector could lead to overex-

ploitation of the resources.118 In addition, as the government of

Vietnam encourages migration to coastal areas and the expan-

sion of the fisheries sector, the labor population involved fish-

ery industry of Vietnam will be probably growing and affecting

the sustainable fishery resources uses.119

All above problems remind us that much work still needs to

be done in order to effectively conserve and manage and sus-

tainably utilize the fishery resources in the Gulf.

Suggestions for Improvement

Control Fishing Capacity at a Rational Level

The fishery resources of the Beibu Gulf are under great

pressure of over-exploitation now. The pressure of fishing

stands still and China and Vietnam must take actions to control

overfishing and manage the fishing capacity.120 Firstly, to im-

plement double control over fishing vessels and the power

amount of fishing boats. Vessels without legal certificates or

exceeding the useful life shall be eliminated from fishing op-

eration. This measure bases on reliable data resulted from sur-

veys on fishery resources and scientific research. Secondly, to

provide more occupational training opportunities. Most fisher-

men are less educated and have rare other working skills except

fishing. Even though the fishermen are willing to leave fishing

sector, they could not easily find another job because lack of

skills. Hence the government of each party should provide more

opportunities of education and training for their interested fish-

ermen. At the same time, the government shall adjust the struc-

ture of fishery industry and increase more working opportuni-

ties in other industrial fields to transfer surplus fishing labor.

Some relevant industries could be considered to develop, such

as aquaculture, aquatic products processing industry, leisure

tourism and service industry, and transportation industry.121

Carry out More Effective Joint Fishing Ban

Now, the effectiveness of the fishing ban of China is ques-

tioned by some critics from China122, Vietnam or other coun-

tries. Some scholars have questioned the rationality and legiti-

macy of the Chinese fishing ban by arguing that the extent of

the ban was kept too vague.123 And some pointed out that the

recovery of fish stocks from the fishing ban has not been as

great as predicted due to some negative impacts.124 Even those

scholars, who appreciate that the fishing ban might have a posi-

111Article 7 of the Fishery Regulations.

112“The Fisher ies Bur eau of Mi nistry o f Agri cultur e: th e summer fis hin g ban

has been executed for 15 years and brings remarkable results,” the Central

People’s Government of the People’s Republic of China (in Chinese), last

modi fied November 19, 2009, http://www.gov.cn/gzdt/2009-11/19/content_

1468595.htm.

113ZOU Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf o

Tonkin,” 17 International Journal of Marine &Coastal Law 127 (2002): 131;

Katharina Schlick, “Fishery agreements in view of the South China Sea

Conflict: A regional coo

erative approach to maritime resource conflicts and

territorial disputes,” China Papers 19 (2009): 6 (New Zealand Contemporary

China Research Centre: http://www.victoria.ac.nz/chinaresearchcentre,

China Papers is a programme of regular publication of working papers by

the New Zealand Contemporary China Research Centre).

114Leszek Buszynski, “The South China Sea: Oil, Maritime Claims, and

U.S.-China Strategic Rivalry,” T h e Washington Quarterly 35:2 (2012): 143.

115“The Fisheries Evolution of the Beibu Gulf: Employment of Vietnamese

due to Labor Shortage,” in the World Wide Web (in Chinese), last modified

May 23, 2012, http://china.huanqiu.com/border/2012-05/2747257.html;

“The South China Sea disputes: how many reefs are there? –five years o

implementation of the Sino-Vietnamese Delimitation Agreement,” Nanfang

Weekend (in Chinese), last modified July 9, 2009, http://www.infzm.com/

content/31142..

116WU Zhi-de and ZOU Jian-wei and FU De, “Problems and countermea-

sures of impl ement in g su mmer fi sh in g clo sur e seas on in Guan gxi Pro vin ce,”

Chinese Fishe ries Economics (in Chinese) 2 (2 009): 16.

117Robert Pomeroy et al., “Fish wars: Conflict and collaboration in fisheries

management in Southeast Asia,” Marine Policy 31(2007): 6 45.

118M.M.M. Pho Hoang Han, “Fisheries development in Vi etnam: A case study i

the exclusive economic zone,” Ocean & Coastal management 50 (2007): 706.

119Jesper Raakjar et al., “Adaptive fisheries management in Vietnam: The

use of indicators and the introduction of a multi-disciplinary Marine Fisher-

ies Specialist Team to support implementation,” Marine Policy 31(2007):

144; Nopparat Nasuchon, “Coastal management and community manage-

ment in Malaysia, Vietnam, Cambodia and Thailand, with a case study o

Thai fisheries management,” Division for Ocean Affairs and the Law of the

Sea Office of Legal Affairs, the United Nations, New York, 2009, 25. last

checked November 1, 2012 , http://www.un.o rg/depts/los/nippo n/unnff_ pro-

gramme_home/fellows_pages/fellows_papers/nasuchon_0809_thailand.pdf.

120CUI Lifeng, “Adapt to the new ocean legal system and promote the

healthy development of marine fisheries -- in commemoration of the 30th

anniversary of signing the United Nations Convention on the Law of the

Sea,” China Fisheries News (in Chinese), September 24, 2012, p. 1.

121HUANG shuolin and GUO wenlu, Disputes and Research on the Re-

gional Cooperation and Management of Fishery Resources in the South

China Sea (Beijing: Ocean Press, 20 07) (in Chinese), 174.

122Zuozhi CHEN, Shannan XU, Yongsong QIU, Zhaojin LIN and Xiaoping

JIA, “Modeling the effects of fishery management and marine protected

areas on the Beibu Guf using spatial ecosystem simulation,” Fisheries Re-

search 100 (2009): 227.

123Leszek Buszynski, “The South China Sea: Oil, Maritime Claims, and

U.S.-China Strategic Rivalry,” The Washingto n Quarterly 35 (2012): 143.

124Huiguo YU and Yunjun YU, “Fishing capacity management in China:

Theoretic and practical perspectives,” Marine Policy 32 (2008): 354.

Y. HUANG, M. M. HUANG

tive result of contribution to the protection of fishery resources,

still argue that its biggest flaw is to create high tension with the

other country if it is applied unilaterally.125 It is doubtless that

the fishing ban needs further improvement, like adjustment of

its executing time and the banned types of fishing vessel and

fishing method. But practice has proved that this measure is

necessary and effective to promote the sustainability of marine

living resources in the Beibu Gulf and prevent overfishing. It is

an effective measure to protect fishery resources. The popula-

tion of natural fish stocks both in marine and freshwater has

been successfully re-established since the implementation of

the fishing ban, and thereby maintaining the sustainability and

affordability of fisheries.126 A survey of fishing ban in Guangxi

Autonomous Zone has shown us some good outcomes. It was

pointed out in the Working Conference on the Summer Fishing

Ban in the Region of the South China Sea in 2010, that the

fishing ban in the region had a successful adjustment, and the

rehabilitation of fishery resources in the South China Sea had

made more significant effects, which had postponed the reces-

sion of fishery resources in the South China Sea greatly. Effec-

tive conservation and recovery of some certain fishery stocks

had been made, and the development of marine fishing had

been maintained. Fishing catch increased significantly in the

main fishing grounds, among which the average fishing catch in

the Beibu Gulf increased by 296.7%.127 What’s more, compared

with other measures, the fishing ban is a relatively lower cost

measure, because “to declare an area closed to fishing in a par-

ticular closed season may be easily monitored and con-

trolled”128. And to implement a fishing ban is required by the

Fishery Regulations, which explicitly provides that the con-

tracting parties shall set up a joint fishing ban in the Common

Fishery Zone .129 Here, the key point is that China and Vietnam

should do more scientific research on the fishing ban, cooperate

with each other and exchange relevant data and information to

improve it. It is obvious that fishery resources could not be

protected and conserv ed effectively by unilateral actions.

Take Measures of Proliferation and Placing Artificial Reefs

Artificial reef construction is an important measure to repair

the coastal ecological environment, to increase and protect the

fishery resources.130 In the last century, Japan, Britain, the US

and Germany all placed artificial reefs to protect the fisheries’

habitat and got economic and biologic benefits. By placing

artificial reefs in the sea areas, the habitat of fish was improved

and of great help to promote conservation and development of

fishery resources. As we mentioned above, in recent years, the

coastal provinces of China also have organized many large-

scale marine living resources proliferation actions. Through

proliferation, Chinese people enhance the awareness of protec-

tion of fishery resources, and an atmosphere of caring and pro-

tecting environment and resources is created in the whole soci-

ety. However, joint efforts from both contracting parties need

more. As the fishery resources in the Beibu Gulf are shared by

the two neighboring countries, they should share the response-

bilities and obligations of conservation and protection too. Peo-

ple have a clear unanimity on one point that fisheries can be

sustainable if the stocks are allowed to recover and if more

sensitive management practices are put in pace.131

Seek More Financial Support and M inimize the Cost

Notably, financial support is indispensable for the effective

implementation of the Fishery Agreement. For example, sur-

veillance and control equipment, such as surveillance vessels

and aircraft, is need of increase. As we all know, “to improve

fisheries managements requires not only the reduction or

elimination of over-capacity but also better scientific knowl-

edge of fish stocks and the marine ecosystem generally, as well

as better conduits for the transmission of scientific advice, less

tainted by political considerations, to fishery managers.”132

Without adequate money, the mechanism of fishery manage-

ment could not be operated well. In order to get more financial

support, some scholars suggest introducing a mechanism of

multi-sources investment. Some even suggest that besides in-

creasing the financial support of government, the fishery Indus-

try shall bear a portion of the cost of the activities of licensing,

data collection, stocks assessment, monitoring and enforcement,

for it benefits from those activities.133 However, it is important

to bear in mind that any cooperative actions shall not impose

too heavy a financial burden on States. Joint efforts must be

made to reduce the cost of cooperation to the minimum and

take into account the financial capacity of concerned countries.

Otherwise, States might be unwilling to take such cooperative

actions. For most developing countries, the problem of en-

forcement cost is much more severe in consideration of their

insufficient financial capacity. These developing countries have

more or less financial difficulties to acquire surveillance and

control equipment, and to develop the technological, adminis-

trative and scientific capacities necessary for the law enforce-

ment. China and Vietnam are also facing such dilemma.

Therefore, when China and Vietnam formulate a system of

fishery management, they should endeavor to strike a balance

between the cost factor and the effectiveness of the system.

That is to say, “to adopt laws and regulations that can ensure

the maximum protection for the fisheries resources but can be

enforced without too much cost”.134

Conclusion

The Fishery Agreement provides the legal basis for China

and Vietnam to cooperate on management, conservation and

utilization of the fishery resources in the EEZs in the Beibu

125Hai-Dang Vu, “A Bilateral Network of Marine Protected Areas between

Vi e tn am and Chin a: An Altern ative to the Chin ese Unilater al Fishing Ban in the

South China Sea?” l ast checked October 25, 2012, http://nghiencuubi endong .vn

download/doc_download/505-vu-hai-da ng-a-bilateral-netw ork-of-marine-pro-

tect-ted-areas-between-vietnam-and-china-an-alternative-to-the-chinese-unila-

teral- fishing-ban-in-the-south-china-sea.

126Duo LI and Xiaojie HU, “Fish and its multiple human health effects in

times of threat to sustainability and affordability: are there alternatives?"

Asia Pacific Journal of Clini cal Nutrition18 (2009): 556. 131Alan Longhurst, “The sustainability myth,” Fisheries Research 81(2006):

107.

132R.R. Churchill and A.V. Lowe, The law of the s ea (Third edition) (Man-

chester: Manchester University Press, 1999), 322.

133Daniel E. Lane and Robert L. Stephenson, “Institutional arrangements for

fisheries: alternate structures and implediments to change,” Marine Policy

24 (2000): 392.

134M. Dahmani, The fisheries regime of the exclusive economic zone

(Dordrecht: Martinus Nijhoff Publishers, 1987), 87.

127YUAN Lin and BI Chaobin , “Obvious Effect on Fishery Reso urces Reh a-

bilitation in the South China Sea,” Guangxi Daily (in Chinese), April 26,

2010, 4.

128M. Dahmani, The fisheries regime of the exclusive economic zone

(Dordrecht: Martinus Nijhoff Publishers, 1987), 87.

129Article 7 of the Fishery Regulations.

130QIU Yongsong, ZENG Xiaoguang, CHEN Tao, WANG Yuezhong and

YUAN Weiwen, The fi sh er y r esour ces an d f i sh er y manage men t in th e So uth

China Sea (Beijing: Ocean Press, 20 08), (in Chinese), 226.

116

Y. HUANG, M. M. HUANG

Gulf. The Agreement has established a long-term cooperative

mechanism to manage the fishery resources. Since China and

Vietnam signed the Fishery Agreement, they have taken a lot of

measures to implement it, both in bilateral and unilateral levels

to manage and conserve the fishery resources in the Gulf. Gen-

erally speaking, the Agreement’s implementation has produced

numerous positive results for the two states: cooperation be-

tween them is strengthened and fishery conflicts are signifi-

cantly reduced; the fishery resources are shared and exploited

peacefully and fairly, and the relationship between China and

Vietnam in the Beibu Gulf becomes stable and orderly. Com-

pared with implementing the Sino-Japanese Fishery Agreement

and the Sino-South Korean Fishery Agreement,135 Sino-Viet-

namese Fishery Agreement has gone quite smoothly. It is worth

summarizing the successful experience of implementing the

Agreement in the Beibu Gulf which provides costal States with

an example or model of fishery cooperation in EEZ under

UNCLOS.

It cannot be denied that problems still exist in the current

fishery management of the Beibu Gulf for which the contract-

ing parties concerned should face and take seriously. China and

Vietnam need to do more in the future.

Acknowledgements

This research is funded by the Philosophy and Social Science

Cultivation Project of Sun Yat-sen University on the Innovation

Research Group (Project No. 12000-3281901).

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