International Regimes in China

Domestic Implementation of the International Fisheries Agreements

Gianluca Ferraro

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781138562547
• eBook ISBN: 9781136168918
• Topic: Business
• Subtopic: Agribusiness
• Index: Business

According to the Food and Agriculture Organization (FAO) of the United Nations, more than 80% of world's fish stocks are fully exploited, over-exploited, depleted, or recovering from depletion. Although several international agreements have promoted more responsible fisheries, coastal states have usually maintained national policies that enable higher harvest levels rather than greater conservation of fish stocks, and international agreements for more responsible fisheries have generally experienced a weak domestic implementation.

Among the major coastal fishing states, China constitutes the largest fish producer and main exporter in the world, and therefore presents a fascinating case-study for the domestic implementation of international fisheries agreements. This book investigates the degree to which China has complied with the international agreements it has signed, and asks why it is failing to meet expectations. Crucially, it calls for greater emphasis on the political, rather than technical, issues involved in the implementation of international regimes. In turn, it examines how understanding the case of China can help us to develop solutions for improved international compliance in the future.

Providing an improved understanding of the implementation of international regimes, alongside an in-depth study of China's political system, policy-making and compliance, this book will be of great interest to students and scholars of Chinese studies, international relations, public policy, and international law and environmental studies. It will also be useful for policy makers working in the fields of environmental regulation and fisheries management.

1 Fisheries between international and national policy-making

While the previous chapter has introduced the problem of domestic implementation with regard to the effectiveness of international regimes and stressed the international salience of fisheries resources and their depletion, this chapter analyses in detail the international regime for fisheries with its evolving principles and rules. The chapter also explains exactly what is meant by domestic implementation of international regimes and introduces the issue of domestic implementation in China. The relevance of the People's Republic of China (PRC) for world fisheries and the importance of fisheries for the country have been explained in the introduction to this book. Here, an overview of China's legal framework for fisheries is presented before explaining how data were collected outside and in the country.

The international regime for fisheries

Numerous international agreements have targeted various aspects of fisheries and have focused on specific geographical areas or all oceans, addressed single species of fish stock or all fisheries resources, and ruled fishing activities in the high seas or the sea area under national jurisdiction, i.e. the Exclusive Economic Zone (EEZ). The consequence is that multiple international regimes for fisheries can be counted, depending on the scope (all types of fish vs. some fish species), the focus (high seas vs. national sea areas) and the scale (global vs. regional agreements).

All types of fisheries that take place in the EEZ represent, respectively, the scope and the focus of this book. Such focus on EEZ fisheries is justified by two considerations. First, about 90 per cent of the world's marine fish stocks depend on the sea area included in the EEZ at some time during their life cycle (FAO 2003; (Peterson 1993). Second, notwithstanding the relevance of this area for fisheries resources' living dynamics, EEZ fisheries and their management are usually neglected in the international debate. As is argued by Barnes (2006: 233), ‘[w]hilst a great deal of recent attention has been spent on the problems of high seas fishing and straddling stocks, the deplorable state of many domestic fisheries regimes has been largely ignored’. Likewise, Treves (2008) has recently criticized the emphasis on the high seas that populates the international debate and diverts attention away from the real problem. A lot still has to be understood and improved in fisheries management within national EEZs, where states are severely depleting their resources. Yet, the delicate political nature of the EEZ, which intertwines with issues of national sovereignty, prevents any serious international debate and action on EEZ fisheries.

The scope and the focus of the book have been clarified. With regard to the scale, Symes (2007) distinguishes four scales of governance in fisheries management: global, regional, national and local scales. A global layer of governance is structured by the United Nations (UN) and its agencies through binding and non-binding instruments, and provides guidance for further regional arrangements and national action. National fisheries policies should, later, be adapted to local contexts by subnational institutions. In the EEZ, fisheries can be properly considered as local resources of global concern (see Introduction). Therefore, the book investigates the response given at a global scale to the problem of overfishing in the EEZ.

Within the global governance for fisheries, Turrell (2004) distinguishes three policy strands: one leading to the United Nations Convention on the Law of the Sea (UNCLOS 1982, 1994); another related to the United Nations Conference on Environment and Development (UNCED 1992); and a third one steered by the Food and Agriculture Organization (FAO) of the UN. The distinction proposed by Turrell (2004) has echoes in a wide body of literature on the law of the sea and was confirmed by several fisheries experts interviewed in international organizations, i.e. FAO and IOC-UNESCO (October 2007). The international regime for fisheries analysed in this book is, thus, composed by four (binding and non-binding) agreements. They are those that govern all types of fisheries (scope) in all EEZs (focus) across the world (global scale): the United Nations Convention on the Law of the Sea (‘UNCLOS strand’); Agenda 21 and the Johannesburg Plan of Implementation (‘UNCED strand’); and the Code of Conduct for Responsible Fisheries (‘FAO strand’).

The UNCLOS strand

The oceans have traditionally been considered as global commons, hence characterized by open access with the exception of a narrow territorial sea under national jurisdiction (see Introduction). The principle of the freedom of the seas (mare liberum) started to be questioned in the first half of the twentieth century by national claims on a broader area of the sea (Vogler 2000). Under such claims for an enclosure of the high seas, the international community adopted the United Nations Convention on the Law of the Sea (UNCLOS) – usually referred to as the ‘Constitution for the Oceans’. After three UN Conferences on the Law of the Sea (UNCLOS I in 1958, UNCLOS II in 1960 and UNCLOS III from 1973 until 1982), the UNCLOS was adopted in 1982 and entered into force in 1994 after the sixtieth ratification (Buck 1998; Kirchner 2003). The Convention represents the first codification of customs on the use of the sea and constitutes the pivotal binding framework on the rights and responsibilities of states with regard to the sea and its resources (Freestone et al. 2006; Breide and Saunders 2005; Kimball 2001). The UNCLOS confirms the freedom of the high seas (Part VII), where sea resources (out of any national sovereignty) belong to mankind (Hall 1998; Vogler 2000). Nevertheless, it changes the status of the oceans as global commons, by giving property rights to coastal states (Peterson 1993). Indeed, in response to national claims for enclosure and with the aim of enabling the conservation of existing commercial fish stocks, the Convention has limited the access to fisheries resources through the introduction of the EEZ (see Part V of the UNCLOS) (Alder et al. 2001; Breide and Saunders 2005; Hall 1998). While for centuries the national jurisdiction of coastal states had been limited to the three-mile limit of territorial sea (Vogler 2000), the UNCLOS recognized coastal states' full rights and responsibilities for managing fisheries resources in a wider area under their jurisdiction (FAO 2003; Peterson 1993). On the breadth of the EEZ, article 57 of the UNCLOS states that ‘[t]he exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured’.

The UNCED strand

Despite its intentions, the UNCLOS left coastal states with high discretion in the management and exploitation of natural resources within their EEZ, without providing any international mechanism to prevent national irresponsible management (Barnes 2006; Gjerde 2006; Hall 1998). In the light of the weaknesses of the legal framework established by the UNCLOS, the international normative framework for fisheries management has evolved to include concerns for the sustainable use of resources (Franckx 2006; (Freestone 2006). Adopted by the United Nations Conference on Environment and Development (UNCED) (Rio de Janeiro, 1992), Agenda 21 has developed a more sophisticated approach to the protection of the marine environment than the one contained in Part XII of the UNCLOS (Boyle 2006; FAO 2003; Gjerde 2006). Chapter 17 – or ‘the Oceans Chapter’ – represents an important reference point for fisheries management and the sustainable use of marine living resources (Charles 2001), which has influenced the elaboration of the Code of Conduct for Responsible Fisheries (CCRF) (Gjerde 2006).

With the purpose of putting sustainable development into practice, the full implementation of Agenda 21 was reaffirmed by the Johannesburg Plan of Implementation (JPOI) adopted at the 2002 World Summit on Sustainable Development (La Viña et al. 2003; OECD 2006). The JPOI establishes a set of targets and timetables. Moreover, a whole section (i.e. Paragraphs 30–36 in Chapter 4 on ‘Protecting and managing the natural resource base of economic and social development’) is dedicated to the protection of the marine environment (Breide and Saunders 2005). It has supplemented the framework of Agenda 21 (Chapter 17) by establishing time-bound targets for several commitments (La Fayette 2006). Having as its overall goal the restoration of fish stocks by 2015 (Para. 31 JPOI), the plan calls for the ratification and implementation of all instruments composing the international fisheries regime. However, the document is a non-binding instrument of soft law, which attempts to guide decisions and actions of national governments (La Viña et al. 2003).

The FAO strand

Agenda 21 – together with the 1992 Cancun Declaration – promoted the elaboration by the FAO of a Code of Conduct for Responsible Fisheries (CCRF), which was adopted in 1995 (Caddy 1999; Turrell 2004). It reiterates, amplifies and strengthens the existing international framework for fisheries (Barnes 2006; Boyle 2006), by including aspects of the UNCLOS and emphasizing the concepts of sustainable use originated from the UNCED. It also establishes a set of principles for the formulation and implementation of national responsible fisher-ies policies (Turrell 2004). Although some parts of the Code are based on rules of international law and other legally binding international agreements (Doulman 2007), the CCRF (as well as its IPOAs¹) remains a soft-law instrument with a non-binding and voluntary nature (Song 2000; Stokke and Coffey 2006). The CCRF aims at orienting states in designing their domestic fisheries policies in a sustainable way (Barnes 2006; Doulman 2007). Yet, binding effect can only be given to the Code's articles by governments' voluntary transposition into national legislation and domestic implementation (Boyle 2006; Caddy 1999).

Principles and rules of the international fisheries regime

International regimes have been defined as ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations' (Krasner 1982: 186) (see Introduction). With regard to principles, it is worth noting that different scient-ifc beliefs and value systems have inspired the three strands of the international fisheries regime. According to Turrell (2004), the first strand of international ocean governance (i.e. the UNCLOS strand) has been driven in a top-down way, with a narrow participation of stakeholders. Mainly governments and industrial lobbies led this process and aimed ‘to exploit and manage the living and nonliving resources of the oceans within a legal framework’ (Turrell 2004: 7; the same view is shared by Garcia et al. 2003). Although the UNCLOS (Art. 61, 64–67, 117–120, 194.5) mentions the need to protect and preserve ecosystems and habitats of depleted, threatened and endangered species, the issue of biodiversity is absent from the Convention (Boyle 2006; Turrell 2004). Adequate scientific knowledge on ecosystems' interactions was also absent at the time when the document was adopted. The UNCLOS rather reflects a traditional fisheries management approach (adopted by national governments since the 1940s), which deals with target stocks individually and separate from the surrounding ecosystem (Charles 2001; Defeo et al. 2007; FAO 2003).

It is the second strand, i.e. the 1992 United Nations Conference on Environment and Development (UNCED), that marks a shift towards concerns for the ecosystem. Two major documents were adopted at the UNCED: Agenda 21 (see above) and the Convention on Biological Diversity (CBD).² The CBD (Article 2) defines the ecosystem as ‘a dynamic complex of plant, animal and microorganism communities and their non-living environment interacting as a functional unit’. The two documents (i.e. Agenda 21 and the CBD) represent an international acknowledgement of the concept of ‘ecosystem management’, which has appeared in scientific debate since the 1970s. It indicates a management philosophy that bridges ecological, economic and social information, and promotes a use of ecosystems that guarantees their perpetuity (Garcia et al. 2003). This change in scientific understanding was accompanied by a change in the value system, represented by the objective of sustainable development. Sustainable development is understood as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’ (Brundtland Report³). The concept of sustainable development, which appeared on the international agenda only in 1987 with the Brundtland Report, constitutes a post-UNCLOS development (Freestone 2006; Vallega 2002). Although some seeds of the new concept can be traced in the Stockholm Declaration (1972), it is the UNCED that marks a shift towards sustainability. The concept is present both in the Action Plan adopted at the conference, Agenda 21, and in the CBD (Turrell 2004).

On the wave of this shift towards ecosystem considerations rather than single species (scientific belief), and sustainability rather than exploitation (value system), the many principles contained in the CCRF (third strand) have been embodied in the comprehensive concept of the ‘ecosystem approach to fisheries’ (EAF). The CCRF never uses the term, which was, in fact, introduced later by the FAO and defined by the 2001 Reykjavik Declaration (FAO 2003; Doulman 2007; Wit 2004). The EAF indicates a framework for fisheries governance that takes ecosystem considerations into more conventional fisheries management and bridges economic, biological and social considerations (Charles 2001; Smith and Maltby 2003). It is an ecosystem-based fisheries management, where ecosystem includes biotic, abiotic and human components (Garcia et al. 2003).

Inspired by these different sets of principles, the three policy strands define a complex system of rules and policy tools for fisheries management. Policy tools (or instruments) are methods (or devices) through which governments address a specific problem and achieve a policy objective (Howlett and Ramesh 2003; Salamon and Lund 1989). With regard to fisheries management, the FAO (1997) distinguishes three main categories of policy tools (or management measures): input controls, output controls and technical measures. For each one of these tools, several prescriptions are contained in the international fisheries regime (see Table 1.1).

Input controls regulate the fishing effort, i.e. how much fishing activity takes place. Fishing effort is determined by four main components: number of vessels; catching power (or capacity) of each vessel⁴; intensity of ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• Foreword
• Preface
• Acknowledgements
• List of abbreviations
• Introduction
• 1 Fisheries between international and national policy-making
• 2 Implementation in theory
• 3 The political system of the People's Republic of China
• 4 China's power centres and authority relations
• 5 Fisheries resources management and fishing licences
• 6 Fisheries resources management and fishing quotas
• 7 Marine environmental protection and marine protected areas
• 8 Domestic implementation of the international fisheries agreements in China
• 9 International regimes in China
• 10 Conclusions
• Notes
• References
• Index