This is the first product of the CSIS Expert Working Group on the South China Sea, which seeks to chart a feasible model for claimants to manage the maritime disputes.  

The South China Sea is one of the world’s top five most productive fishing zones, accounting for about 12 percent of global fish catch in 2015. More than half of the fishing vessels in the world operate in these waters, employing around 3.7 million people, and likely many more engaged in illegal, unregulated, and unreported fishing. But this vital marine ecosystem is seriously threatened by overfishing, which is encouraged by government subsidies, harmful fishing practices, and, in recent years, large-scale clam harvesting and dredging for island construction.

On the left, the relatively healthy but overfished reef flat surrounding Thitu Island; on the right, a reef flat approximately 1.5 nautical miles away destroyed by Chinese clam harvesters. Both photos dated February 2016, courtesy of John McManus. 

Total fish stocks in the South China Sea have been depleted by 70-95 percent since the 1950s and catch rates have declined by 66-75 percent over the last 20 years. Giant clam harvesting, dredging, and artificial island building in recent years severely damaged or destroyed over 160 square kilometers, or about 40,000 acres, of coral reefs, which were already declining by 16 percent per decade. The entire South China Sea fishery, which employs millions of people and helps feed hundreds of millions, is now in danger of collapse unless claimants act urgently to arrest the decline.

Article 123 of the United Nations Convention on the Law of the Sea (UNCLOS) mandates that states bordering semi-enclosed seas like the South China Sea are obligated to cooperate in areas that include the protection of the marine environment and management of fish stocks. This is reflective of the deeply interconnected ecologies of semi-enclosed seas, in which currents cycle marine life (and pollution) through the region without regard for national jurisdiction. Moreover, Article 192 of UNCLOS provides a general obligation for states to “protect and preserve the marine environment.” Unlike hydrocarbons, for which exploitation rights are based only upon a state’s entitlement to the continental shelf, the obligation to jointly steward living marine resources makes fisheries management and environmental protection “low-hanging fruit” for cooperation in the South China Sea.

An effective system to manage the fisheries and environment of the South China Sea cannot be based primarily on the overlapping territorial and maritime claims to which the fish pay no attention. Instead it must be built around the entire marine ecosystem, particularly the reef systems on which much marine life depends. With political will, it is entirely possible for nations bordering the South China Sea to cooperatively protect these ecosystems and manage fish stocks without prejudice to their overlapping territorial and maritime claims. For instance, the Philippines, whose government is under a strict constitutional requirement to defend the nation’s sovereign rights over its waters and continental shelf, could agree to cooperate on fisheries management in disputed waters under Article 123 of UNCLOS without prejudicing its claims or bestowing legitimacy on the claims of others and therefore without running afoul of its domestic law.

The international legal obligation to cooperate on fisheries management and the environment is matched by practical necessity. Communities all around the South China Sea are highly dependent on fish stocks for both food security and local livelihoods. Yet the region has seen catch rates plummet in recent years thanks to a combination of overfishing and willful environmental destruction. In the South China Sea, fish may spawn in one nation’s exclusive economic zone (EEZ), live as juveniles in another’s, and spend most of their adult lives in a third. Overfishing or environmental destruction at any point in the chain affects all those who live around the sea. The entire South China Sea is teetering on the edge of a fisheries collapse, and the only way to avoid it is through multilateral cooperation in disputed waters.

Frequently discussed options for the protection of South China Sea fish stocks include the creation of a new regional fisheries management organization (RFMO) or the expansion of an existing body. But considering the pressing nature of the threat, the complexity involved in establishing an RFMO, and the mixed track record of current organizations, a more practical option would be for claimants to negotiate a mechanism to monitor stocks, establish catch limits and protection zones, and enforce those regulations without the full bureaucracy of an RFMO. Such an arrangement could, over time, evolve into a more robust and institutionalized organization.

To that end, claimants and littoral states should agree to:

  1. Establish a Fishery and Environmental Management Area in the South China Sea with implementation and enforcement drawing from successful precedents including the Great Barrier Reef Marine Park and the OSPAR Convention. The management area will constitute a series of distinct ecosystem-based fisheries zones covering the reefs that are vital to regional fish stocks, including the Paracel Islands, Spratly Islands, Scarborough Shoal, and Luconia Shoals, as well as the waters between, in which pelagic species are fished. It will function according to the following procedures:
    1. The management area would not necessitate a complete ban on fishing. Instead it will consist of a patchwork of tailored fisheries zones. These might include no-catch zones to allow dangerously depleted fisheries to replenish, zones where only certain types of fishing will be restricted, and zones with no restrictions at all. See the map below for an example of this type of scheme as applied to the Great Barrier Reef.
    2. Involvement by parties in the establishment and enforcement of the management area will be without prejudice to existing territorial and maritime claims and cannot be construed as recognition by any party of the claims of others.
    3. Determinations of what types of fishing will be banned or allowed in each area should be made based solely on scientific criteria, such as reef health and importance to migratory fish stocks.
    4. All parties will appoint an agreed-upon number of members to a commission of independent experts and officials from relevant fisheries, maritime, and scientific agencies to establish the layout of the management area and make regular adjustments.
    5. All claimants and littoral states bordering the South China Sea should be involved in the creation and management of the fisheries zones because all are reliant upon a healthy marine ecosystem in this semi-enclosed sea. This means that Brunei, China, Indonesia, Malaysia, the Philippines, Singapore, Taiwan, and Vietnam should be involved in the scientific research in and mapping of fisheries zones.
    6. An advisory body on the management of pelagic fish species should be established to include both the South China Sea claimants and Gulf of Thailand littoral countries. The latter need not be involved in the creation of fisheries zones covering reef fish in the South China Sea but should be consulted regarding zones aimed at managing migratory stocks that travel between the two bodies of water.
  1. Split enforcement responsibilities between occupiers and flag states, as follows:
    1. Parties will bear responsibility for monitoring and interdiction of ships violating the fishing restrictions set by the multilateral commission within 20 nautical miles of outposts they occupy on disputed features AND in those parts of the management area within 200 nautical miles of their coastlines. In areas of overlapping jurisdiction, the 20-nautical-mile zone around occupied features will take precedence over the 200-nautical-mile zone from the coast. If two coastal zones or two zones from occupied features overlap, a median line will be used to separate the areas of responsibility. These enforcement zones are illustrated in the maps below.
    2. Parties may issue fishing licenses for domestic and foreign fishers within their provisional enforcement zones, consistent with the restrictions established by the multilateral commission for the management area.
    3. These jurisdictional zones do not constitute a judgment about sovereignty over occupied features or their legal status (as islands, rocks, low-tide elevations, or submerged features). They are provisional arrangements, not a recognition of entitlements to territorial seas or EEZs and will not prejudice the future delimitation of maritime boundaries.
    4. Patrol and interdiction of ships violating the mutually agreed-upon fishing restrictions in parts of the management area beyond these jurisdictional zones may be undertaken by any claimant. This includes all areas farther than 200 nautical miles from coastlines and 20 nautical miles from occupied features. Claimants should seek to coordinate patrols, including with the eventual use of ship-rider agreements, and share maritime domain awareness information in these areas.
    5. Prosecution of ships from a claimant or South China Sea littoral state that violate fishing restrictions in the management area will be the responsibility of the flag state. The arresting party should arrange to transfer such vessels and their crew in a timely manner. Prosecution of violators from non-party states should be the responsibility of the arresting party.

  2. Agree not to use subsidies to encourage fishing within the already overfished South China Sea, as follows:
    1. Agree to forego geographically-defined subsidies that might encourage fishing within the management area.
    2. Agree that fishers found to violate the management area’s restrictions will lose access to any existing government subsidy and support programs meant to support the fishing industry.
  3. Coordinate efforts to reintroduce giant clams and other threatened species such as sea turtles to depopulated reefs in the South China Sea, as follows:
    1. Provide funding, coordination, and logistical support for a consortium of universities and research organizations to lead this effort, including those in China and Southeast Asia already engaged in raising giant clams in captivity.
    2. Each claimant will be responsible for planting clams and reintroducing other species on reefs it currently occupies. Eventually, unoccupied reefs should be repopulated by multinational civilian teams, though in the short- and medium-term priority should be given to reefs near occupied features as they will be much easier to protect from poachers. Such activities will be undertaken without regard to or prejudice for territorial claims.
  4. Avoid activities that damage the marine environment or alter the seabed, as follows:
    1. Refrain from any intentional destruction of marine habitats, including by dredging, land reclamation, or construction of facilities on unoccupied reefs.
    2. Commit to perform and publicly release environmental impact assessments before undertaking construction or renovation work on occupied features.
  5. Agree that in the case of a dispute over the interpretation or implementation of this agreement, either party may request the establishment of a commission of mediation, inquiry, or conciliation according to the following procedures:
    1. Each party to this agreement will name up to four experts in maritime affairs to be registered on a list to serve as potential members of a commission of mediation, inquiry, or conciliation. If a party has fewer than four experts registered to the list at any time, it may name additional experts to fill its quota.
    2. A party to a dispute may request the establishment of a commission once it is satisfied that direct negotiations cannot resolve the issue. Participation in the process of mediation, inquiry, or conciliation will then be compulsory for all parties to the dispute.
    3. Each party to the dispute will appoint two experts from the standing list of potential members to serve on the commission. A party may not appoint one of the experts that it named to the list.
    4. Once all parties to the dispute have made their selections, those appointed commissioners will elect another expert from the list to serve as the chairperson of the commission. That chairperson may not be selected from among those experts named to the list by one of the disputing parties.
    5. The commission will determine its own procedure for investigating and mediating the dispute, unless the parties to the dispute have already agreed to a procedure.
    6. The commission will issue a decision outlining its conclusions on all questions of fact or law relevant to the dispute and make its recommendations for a settlement between the parties.

This blueprint represents a consensus among the members of the South China Sea Expert Working Group at CSIS acting in their personal capacities and not as representatives of their home institutions.

Header photo courtesy of Vladimir Varfolomeev’s Flickr stream

About South China Sea Expert Working Group

CSIS’s newly-launched working group on the South China Sea brings together prominent experts on maritime law, international relations, and the marine environment. The group meets regularly to tackle issues that it considers necessary for the successful management of the South China Sea disputes and produces blueprints for a path forward on each. The group hopes to produce a robust model for managing the disputes that would be both legally and politically feasible—in effect, a blueprint for an eventual code of conduct.