Towards sustainable management of China's marine fishery resources: Law and enforcement

Asia Pacific Journal of Environmental Law

Volumn 2, Issue 3-4, 1997, Pages 293-316

  Keyuan, Zou ^a   Von, Alexander ^b  

^a PEKING UNIVERSITY   (China)

^b LEIBNIZ UNIVERSITY HANNOVER   (Germany)

Author keywords

China; China ocean agenda 21; Enforcement; Fishery laws; Sustainable development

Indexed keywords

EID: 0003336183     PISSN: 13852140     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (77)

1. World Commission on Environment and Development Our Common Future (Oxford University Press, Oxford: 1987) 43.
2. Chapter 17, Agenda 21, UN Doc A/CONF.151/26, Vol 2, 130-166. For general comments, see Biliana Cicin-Sain and Robert W. Knecht "Implementation of the Earth Summit for Ocean and Coastal Governance" (1993) 24 Ocean Development and International Law 121-153;
3. and Biliana Cicin-Sain "Reflections on UNCED Implementation: Emphasis on Oceans and Coasts" in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman (eds) Sustainable Development and the Preservation of the Oceans: The Challenges and Agenda 21 (Law of the Sea Institute, University of Hawaii, Honolulu: 1997) 348-378.
4. UNCLOS, Art. 61.
5. A brief account of the natural environment of the Yellow Sea may be found in M. J. Valencia "The Yellow Sea: Transnational Marine Resources Management Issues" (1988) 12 Marine Policy 383-385.
6. See Luo Yuro&Zeng Chengkui (eds) Marine Affairs in the Contemporary China (China Social Science Press, Beijing: 1985) (in Chinese) 1-2.
7. Physicogeography of China Compilation Committee, Chinese Academy of Sciences Physical Geography of China (China Science Press, Beijing: 1979)(in Chinese) 91-93, 144-146, 221-223.
8. See Han Mukong et al "China's Coastal Environment, Utilisation and Management" (1988) 7 Ocean Yearbook 224.
9. See State Oceanic Administration (SOA) China Ocean Agenda 21 (Ocean Press, Beijing: 1996) 40.
10. See Lu Shouben (ed) The Marine Legal System (Guangming Daily Publishing House, Beijing: 1992)(in Chinese) 155;
11. also see Yann-huei Song "China's Ocean Policy: EEZ and Marine Fisheries" (1989) 29 Asian Survey 995.
12. For some relevant comments, see Huming Yu "Marine Fishery Management in PR China" (1991) 15 Marine Policy 23 at 27-28.
13. See Office of Laws and Regulations, State Oceanic Administration (ed) Collection of the Sea Laws and Regulations of the People's Republic of China (Ocean Press, Beijing: 1991) 290-302.
14. Ibid Collection of the Sea Laws and Regulations of the People's Republic of China 1991 at 312-328.
15. Ibid Collection of the Sea Laws and Regulations of the People's Republic of China 1991 at 315.
16. Zhou Yingqi "Marine Fisheries in China" (1992) 18 Proceedings of Pocem in Maribus 44.
17. Office of Laws and Regulations, note 11 at 318-319.
18. Ibid Office of Laws and Regulations at 293.
19. Ibid Office of Laws and Regulations at 78-93.
20. They ate, inter alia: (a) the Marine Environmental Protection Law 1982 (China); (b) the Regulations concerning the Prevention of Pollution in Sea Areas by Vessels 1983 (China); (c) the Regulations concerning Environmental Protection in Offshore Oil Exploration and Exploitation 1983 (China); (d) the Regulations concerning the Dumping of Wastes at Sea 1985 (China); (e) the Regulations on Prevention of Environmental Pollution by Ship-Breaking 1988 (China); (0 the Regulations on the Prevention and Control of Pollution against the Marine Environment by Seashore Construction Projects 1990 (China); and (g) the Regulations on Prevention and Control of Pollution from Land-Based Sources against the Marine Environment 1990 (China).
21. See Stanley D. H. Wang and Bing-yi Zhan "Marine Fishery Resource Management in PR China" (1992) 16 Marine Policy 197 at 203.
22. Office of Laws and Regulations, note 11 at 323.
23. It provides that those who are seriously in violation of the laws and regulations on the protection of aquatic resources, are liable to be sentenced to less than two years imprisonment, or to be in custody, or fined. See Office of Laws and Regulations, note 11 at 289.
24. For details, see Lu, note 9 at 228-229.
25. See Office of Laws and Regulations, note 11 at 79-80.
26. Lu, note 9 at 233.
27. Zhou, note 14 at 52.
28. See Song, note 9 at 997-998.
29. China Ocean Daily (in Chinese) 12 September 1990.
30. Xu Bolong "A Holocaust in the East China Sea Fishing Ground" (1990) No 6 Ocean World 2 (in Chinese).
31. Ibid Xu Bolong "A Holocaust in the East China Sea Fishing Ground" (1990) No 6 Ocean World at 3.
32. Bilan Du "China's Strategy for Development of Its Marine Living Resources in the EEZ" in Tadao Kuribayasi and Edward L. Miles (eds) The Law of the Sea in the 1990s: A Framework for Further International Cooperation (Law of the Sea Institute, Honolulu: 1992) 465.
33. Xu, note 28 at 3.
34. Xu, note 28 at 3 Ibid.
35. Huming Yu "The Adequacy of the Management Regime for the Coastal and Marine Environment in the People's Republic of China" (1997) 12 International Journal of Marine and Coastal Law 181 at 186.
36. Huming Yu "China's Coastal Ocean Uses: Conflicts and Impacts" (1994) 25 Ocean and Coastal Management 161 at 165.
37. See Daniel J. Dzurek "Boundary and Resource Disputes in the South China Sea" (1985) 5 Ocean Yearbook 264-270.
38. See People's Daily (Overseas Edition) (in Chinese) 16 May 1996.
39. David Freestone "The Precautionary Principle" in Robin Churchill and David Freestone (eds) International Law and Global Climate Change (Graham 6k Trotman, London: 1991) 21.
40. For general comments, see David Freestone and Ellen Hey (eds) The Precautionary Principle and International Law (Kluwer Law International, London: 1996); and
41. Harold Hohmann Precautionary Legal Duties and Principles of Modem International Environmental Law (Graham&Trotman, London: 1994).
42. J. Cameron and J. Abouchar "The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment" (1991) 14 Boston College Internationa!&Comparative Law Review 2.
43. See also A. Nollkaemper "The Precautionary Principle in International Environmental Law: What's New Under the Sun?" (1991) 22 Marine Pollution Bulletin 107.
44. Lothar Gündling "The Status in International Law of the Principle of Precautionary Action" in David Freestone and Ton IJlstra (eds) The North Sea: Perspectives on Regional Environmental Cooperation (Graham 6k Trotman, London: 1990) 26.
45. (1995) 34 ILM 1542.
46. It is the Guidelines for the Application of Precautionary Reference Points in Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) 34 ILM 1580.
47. (1995) 34 ILM 1551.
48. They are:"(1) No new fishery should be established or existing fishery expanded until a scientifically-based management plan has been drawn up that has been shown, by simulation or otherwise, to be capable of ensuring sustainability with high probability under a wide range of possible scenarios with respect to the dynamics of the stocks and ecological interactions. (2) Management plans that meet the above requirements should be drawn up and implemented for existing major fisheries by the year of 2000. A correspondingly later deadline can be set for fisheries which have been stable for 20 years or more. (3) The intensity of fishing should not be such as to substantially distort the character of the ecosystem This objective shall be interpreted operationally to require that each management plan be able to demonstrate high statistical probability that catches do not reduce the average biomass of either target or non-target species by more than 20 per cent compared to the expected average biomass in the absence of fishing, unless a greater removal can be shown not to have a detrimental effect on the ecosystem. (4) Where there are insufficient data to determine the likely impact of exploitation of the stocks in order to implement criterion (3), the management plan shall ensure that average annual catches of target and non-target species do not exceed 1 per cent of estimated stock biomass in any area. (5) No fishery shall be established or expanded in the absence of a reliable minimum estimate of the target species biomass. (6) No new fishing method, or fishing method new to an area, shall be deployed on a commercial scale until data from experimental fishing with the new method have been obtained and independently evaluated, and have been found to provide reliable estimates of catch rates of non-target species and undersized fish and of physical disturbance to habitat. If the experimental data indicate substantial disturbance to habitat, the fishing method shall not be deployed on a commercial scale until adequate research has been carried out to determine the effects on the productivity of the same and other fisheries and on the rest of the ecosystem. If the effects are found to be adverse, the fishing method shall not be deployed in the area. (7) Whether or not there is evidence of adverse effects, any fishing method used in an area that involves substantial disturbance to habitat shall be excluded from representative closed sub-areas covering at least 50 per cent of the fishing ground, to conserve part of the habitat in its undisturbed state. If the entire fishing ground has already been subject to major disturbance, closed areas shall be established to permit recovery of part of the habitat": Justin Cooke and Michael Earle 'Towards a Precautionary Approach to Fisheries Management" (1993) 2 Review of European Community and International Environmental Law 252 at 258.
49. See William T. Burke "UNCED and the Oceans" (1993) 17 Marine Policy 519 at 530-531
50. and Grant J. Hewison "The Precautionary Approach to Fisheries Management: An Environmental Perspective" (1996) 11 International Journal of Marine and Coastal Law 301-332.
51. (1980) 19 ILM 841.
52. M. Basson and J. R. Beddington "CCAMLR: The Practical Implications of an Ecosystem Approach" in A. Jorgensen-Dahl and Willy Ostreng (eds) The Antarctic Treaty System in World Politics (MacMillan, London: 1991) 54.
53. See T. Scully "The Convention on the Conservation of Antarctic Marine Living Resources - A Case Study" in L. M. Alexander, S. Allen and L. C. Hanson (eds) New Developments in Marine Science and Technology: Economic, Legal and Political Aspects (Law of the Sea Institute, Honolulu: 1989) 138.
54. See F. Orrego Vicuña "The Implementation of CCAMLR: Is the Decision-Making Machinery Conducive to Good Management!" (1990) Vol 10 (1) International Challenges 9.
55. M. H. Belsky "Developing an Ecosystem Management Regime for Large Marine Ecosystems" in Kenneth Sherman and Lewis M. Alexander (eds) Biomass Yields and Geography of Large Marine Ecosystems (Westview Press, Boulder: 1989) 444.
56. Appendix 6: Sustainability and Protection of the Yellow Sea Large Marine Ecosystem, China Ocean Agenda 21, in SOA, note 8 at 163-167.
57. Cicin-Sain, note 2 at 352-354. For example, the World Bank formulated the Guidelines for Integrated Coastal Zone Management in October 1993.
58. See Yu, note 33 at 187.
59. SOA, note 8 at 64-65.
60. Elisabeth Borgese "Sustainable Development in the Oceans" (1997) 27 Environmental Policy and Law 203 at 206.
61. SOA, note 8 at 66-67.
62. See Zhao Enbo and Liang Jinze "U.N. Convention on the Law of the Sea and China's Marine Legislation" in Certain Issues on the U.N. Convention on the Law of the Sea (China Society of the Law of the Sea, Beijing: 1994) (in Chinese) 9.
63. SOA, note 8 at 67-68.
64. The UN resolutions on the law of the sea, have repeatedly called on States to harmonise their national legislation with the provisions of UNCLOS and ensure their consistent application. For example, Resolution 50/23, para 2. See UN Doc A/51/645, Law of the Sea, Report of the Secretary-General, 15 October 1996,13-14.
65. The Declaration states that "in accordance with the provisions of the United Nations Convention on the law of the Sea, China has sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical rules and the continental shelf. See People's Daily (Overseas Edition) (in Chinese) 16 May 1996.
66. See http://www.cnd.org: 8007.CM97/cm9707c.hz8.html+4 (25 September 1997).
67. SOA, note 8 at 45. Mariculture, however, also causes ecological problems and needs sound management.
68. A case study illustrates the problem. In the Bohai Sea, the conflicting uses are as follows:(a) contradiction between pollution and aquatic products: in 1980 oil spills were 21,078 tonnes which made the sea coast a dead and marine products inedible; (b) contradiction between oil exploitation and marine production: two accidents of oil-gushing from wells which happened in 1974 and 1979 respectively made thousands of fish inedible, and six out of seven cultivated ponds were discarded; (c) contradiction between salt industry and fishery; there are four large salt industrial areas in China, and three of them are located along the Bohai coast, each time the salt fields receive tide, they destroyed large quantity of prawn seedlings; (d) contradiction between shipping and mariculture. According to the statistics for the period between 1979 and 1984, the leaked oil of 8,750 tonnes made seabeach cultivation of shellfish and fishing trade suffered heavily. See Jiang Tiemin "The Exploitation and Protection of Bohai Sea" (1988) Pacific Annuals '88 180-181.
69. UNCLOS, Art. 63(1).
70. For example, the broadest distance in the Yellow Sea is 378 nautical miles and the East China Sea about 400 nautical miles.
71. It was reported that Thailand had lost access to about 777,000 square kilometres of fishing grounds as a direct result of the adoption of EEZs. Many Thai fishing vessels and fishermen are arrested every year for alleged intrusions into neighbouring waters. See UN Doc A/50/549, 12 October 1995, para 18.
72. See Ibid at para 15.
73. SOA, note 8 at 43.
74. See http://www.cnd.org:8007.CM97/cm9707c.hz8.html+4 (25 September 1997).
75. See Choon-ho Park Fisheries Issues in the Yellow Sea and the East China Sea (Occasional Paper No 18, Law of the Sea Institute, University of Rhode Island, Newport: 1973) 21-22.
76. See Food and Agricultural Organisation The Stale of World Fisheries and Aquaculture 1996 (FAO, Paris: 1997) 62.
77. 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, 11 February 1992, reprinted in (1993) No 22 Law of the Sea Bulletin 21-30.