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Fisheries Co-operation in the South China Sea and the (Ir)relevance of the Sovereignty Question

Published online by Cambridge University Press:  04 November 2011

NGUYEN DANG Thang
NGUYEN DANG Thang*
Affiliation:
University of Cambridge, United Kingdom
*
[email protected]
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Abstract

Joint petroleum development has often been considered as a viable solution to the seemingly intractable Spratly Islands dispute in the South China Sea (SCS). This is, however, more easily said than done. On the other hand, little attention is paid to fisheries co-operation in the SCS despite the fact that fisheries constitute an important part in the economies of coastal states. The present laissez-faire approach to fisheries in the disputed area gives rise to friction and tension. By highlighting the salient features of existing fisheries’ co-operative arrangements in the world, this article demonstrates the merits of a fisheries arrangement in the SCS. It also argues that fisheries co-operation, as a low-profile undertaking, is probably easier to achieve than joint petroleum development. A fisheries arrangement would serve the immediate interests of parties to the Spratly Islands dispute and may pave the way for their future high-profile co-operation, i.e. joint petroleum development.

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Articles
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Asian Journal of International Law , Volume 2 , Issue 1 , January 2012 , pp. 59 - 88
Copyright
Copyright © Asian Journal of International Law 2011

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Footnotes

*

PhD Candidate, Faculty of Law, University of Cambridge; Associate, Centre for South China Sea Studies, Diplomatic Academy of Vietnam; Visiting Lecturer, Faculty of International Law, Diplomatic Academy of Vietnam. The author would like to express his deepest gratitude to Professor James Crawford for his guidance. Many people have helped me in writing this article but special thanks are due to Mr Rolf Einar Fife, Director General of the Department for Legal Affairs of the Norwegian Ministry of Foreign Affairs, for sharing Norwegian law of the sea viewpoints as well as for providing the English translation of the Russia-Norway Grey Zone Agreement and some important Norwegian literature, to Hoang Phuong Mai, Tran Truong Thuy, Trieu Quang Hai, and Vu Hai Dang for supplying valuable information, and to Zhen Sun for checking the Chinese language. An earlier version of this article was presented at the 2nd NUS-AsianSIL Young Scholars Workshop, Panel VI: Water, Singapore, 30 September–1 October 2010. The author thanks Professor Robert Beckman, Chairman of the Panel, and the participants at the Workshop, particularly Dinara Ziganshina, for helpful suggestions. Finally, the author would also like to thank the anonymous reviewers for their constructive comments. The usual caveat applies.

References

1. No official number of the total features is confirmed. According to Vietnam, the Spratly Islands consist of about a hundred features lying over an area of about 160,000–180,000 km2. See Ministry of Foreign Affairs of the Socialist Republic of Vietnam, The Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes and International Law (Hanoi: MOFA Vietnam, 1988) at 32. Meanwhile, VALENCIA, Mark J., VAN DYKE, Jon M., and LUDWIG, Noel A., Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff, 1997) at 227–234Google Scholar, lists ninety-five features; HANCOX, David and PRESCOTT, Victor, “A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Amongst Those Islands” (1995) 1 Maritime Briefings 1 at 3–30Google Scholar, describes 135 features. One Chinese scholar claims the number amounts to 230 over 250,000 km2. See SHEN Jianming, “China's Sovereignty over the South China Sea Islands: A Historical Perspective” (2002) 1 Chinese Journal of International Law 94 at 97Google Scholar. Opinions also differ as to the exact geographical location of the islands. According to Hancox and Prescott, supra, the islands are located between 12°N longitude and 112°E latitude, while HEINZIG, Dieter, Disputed Islands in the South China Sea: Paracels, Spratlys, Pratas, Macclesfield Bank (Wiesbaden: Harrassowitz, 1976) at 17Google Scholar and SAMUELS, Marwyn S., Contest for the South China Sea (New York: Methuen, 1982) at 188Google Scholar, describe the islands as lying between 4° and 11.30°N and 109.30° and 117.50°E.

2. Chinese Taipei (Taiwan) is treated here as a separate party, though it is not recognized as a state. See further infra note 174 and the accompanying text.

3. Due to the lack of exploration activity, there is no certainty as to the hydrocarbon potential of the SCS as a whole nor the area around the Spratly Islands. SCHOFIELD, Clive, “Dangerous Ground: A Geopolitical Overview of the South China Sea” in Sam BATEMAN and Ralf EMMERS, eds., Security and International Politics in the South China Sea: Towards a Co-operative Management Regime (London: Routledge, 2009), 7 at 15Google Scholar, considers the estimates relating to the potential of the SCS and the Spratly Islands region as “best guesstimates”.

4. The most detailed and thought-provoking analysis is perhaps Valencia, Van Dyke, and Ludwig, supra note 1. See also ZOU Keyuan, “A New Model of Joint Development for the South China Sea” in Myron H. NORDQUIST, John Norton MOORE, and FU Kuen-Chen, eds., Recent Developments in the Law of the Sea and China (Leiden: Martinus Nijhoff Publishers, 2006) at 155Google Scholar; ZOU Keyuan, “Cooperative Development of Oil and Gas Resources in the South China Sea” in Bateman and Emmers, eds., supra note 3, 80Google Scholar.

5. NGUYEN Hong Thao and Ramses AMER, “A New Legal Arrangement for the South China Sea?” (2009) 40 Ocean Development and International Law 333 at 338Google Scholar.

6. The JMSU was not renewed because of the controversy within the Philippines over the constitutionality of the agreement. See SCHOFIELD, Clive and STOREY, Ian, “The South China Sea Dispute: Increasing Stakes and Rising Tensions”, Jamestown Foundation, Washington, DC, Occasional Paper, 20 November 2009, at 28Google Scholar.

7. Literature on this issue is sparse and often of general discussion. See e.g. HUANG Shuo-Lin, GUO Wen-Lu, and ZHU Zhanhua, “Regional Co-management of Fisheries Resources in the South China Sea” in Nordquist, Moore, and Fu, eds., supra note 4, 203Google Scholar (dealing with the issue in a cursory way by listing the relevant provisions of legal and political documents concluded among the countries in the SCS and the unilateral, bilateral, and regional efforts of states before putting forth some short-term and long-term objectives for fisheries management in the region); Pakjuta KHEMAKORN, “Sustainable Management of Pelagic Fisheries in the South China Sea Region”, United Nations-The Nippon Foundation, New York, Occasional Paper, November 2006 (dealing with general fisheries issues in the SCS rather than issues relating to the Spratly Islands dispute); WANG Kuan-Hsiung, “Bridge over Troubled Waters: Fisheries Cooperation as a Resolution to the South China Sea Conflicts” (2001) 14 Pacific Review 531Google Scholar (putting forth some theories applicable to the SCS but lacking comparative studies on how fisheries arrangements in disputed areas function).

8. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 396 (entered into force 16 November 1994) [UNCLOS].

9. For discussions of the claims to the Spratly Islands, see generally DZUREK, D.J., “The Spratlys Island Dispute: Who's on First?” (1996) 2 Maritime Briefings 1Google Scholar; Valencia, Van Dyke, and Ludwig, supra note 1 at 17–40; Renate HALLER-TROST, The Contested Maritime and Territorial Boundaries of Malaysia: An International Law Perspective (London: Kluwer Law International, 1998) at 322–339Google Scholar. See also Monique CHEMILLIER-GENDREAU, La Souveraineté sur les Archipels Paracels et Spratleys (Paris: L'Harmattan, 1996)Google Scholar.

10. See further NGUYEN Thi Lan-Anh, The South China Sea Dispute: A Reappraisal in the Light of International Law, PhD thesis, University of Bristol, Bristol, 2008, at 55–61Google Scholar; OUDE ELFERINK, Alex G., “The Islands in the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?” (2001) 32 Ocean Development and International Law 169Google Scholar. Contrast with GJETNES, Marius, “The Spratlys: Are They Rocks or Islands?” (2001) 32 Ocean Development and International Law 191CrossRefGoogle Scholar.

11. See generally Barbara KWIATKOWSKA and Alfred SOONS, H.A., “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own” (1990) 21 Netherlands Year Book of International Law 139Google Scholar. For discussion in the context of the SCS, see Oude Elferink, supra note 10 at 173–4; Nguyen, supra note 10 at 51–61.

12. It is interesting to note that two judges of the International Tribunal for the Law of the Sea (ITLOS) give completely different classifications to Heard Island in The ‘Volga’, Russian Federation v. Australia, Prompt Release, ITLOS Case No. 11, Judgment of 23 December 2002. See Declaration by Judge Vukas and Dissent by Judge Anderson, footnote 3.

13. A paper commissioned by Vietnam argues that the features in the Spratly Islands fall within the definition of Article 121(3) and hence are not entitled to an exclusive economic zone and continental shelf. But it is doubtful if this represents the official position of the government of Vietnam. It has been interpreted that the joint submission by Malaysia and Vietnam to extend their continental shelf from coastlines indicates that Malaysia and Vietnam consider the features of the Spratly Islands as having twelve nautical miles of territorial seas only. See Robert BECKMAN, “South China Sea: Worsening Dispute or Growing Clarity in Claims?”, RSIS Commentaries 90/2010, S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University (Singapore), 16 August 2010. See also MCDORMAN, Ted L., “The South China Sea After 2009: Clarity of Claims and Enhanced Prospects for Regional Cooperation?” (2010) 24 Ocean Yearbook 507 at 516–517Google Scholar, 521. But it is plausible to argue that a submission acknowledging the limited territorial reach of the Spratly Islands should not be considered as a bar to future continental shelf claims by the two countries based on these features since any limitation on state sovereignty should not be presumed. As McDorman, supra at 522, acknowledges, “there is still uncertainty such that it would be unwise to dismiss totally the features of the Spratlys as being the basis of ocean claims to an adjacent EEZ and continental shelf beyond 200 nm, particularly in the case of China”. This prudent observation turns out to be true. In its recent diplomatic note to the Secretary-General of the United Nations, China stated categorically that the Spratly Islands are fully entitled to their own exclusive economic zone and continental shelf. See “Note Verbale No. CML/8/2011 (14 April 2011) of the Permanent Mission of the People's Republic of China to the United Nations”, online: 〈http://www.un.org/depts/los〉. The position of the Philippines is less clear, stating vaguely that the regime of islands under Article 121 of UNCLOS will apply to the Spratly Islands, which it claims as the Kalayaan Island Group. See “Philippines: Republic Act No. 9522: An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purpose” (2009) 70 Law of the Sea Bulletin 32, sec. 2(a). This position is reaffirmed in “Note Verbale No. 000228 dated 05 April 2011 of the Permanent Mission of the Republic of the Philippines to the United Nations”, online: 〈http://www.un.org/depts/los〉. Non-parties to the Spratly Islands dispute not surprisingly made their views clear. Indonesia, for example, in its diplomatic note sent to the Secretary-General of the United Nations, officially stated that none of the Spratly Islands is capable of generating an exclusive economic zone and continental shelf of its own. See point 3 of the 19 July 2010 diplomatic note of Indonesia sent to the UN Secretary-General, online: 〈http://www.un.org/Depts/los〉.

14. Schofield, supra note 3 at 12–18, states that the features of the Spratly Islands do not have much intrinsic value in themselves but have the potential to generate large maritime zones and hence entitle claimant states to exploit marine natural resources there, particularly oil and gas.

15. ROSENBERG, David, “Fisheries Management in the South China Sea” in Bateman and Emmers, eds., supra note 3 at 61Google Scholar. Timo KIVIMA KI, ed., War or Peace in the South China Sea? (Copenhagen: NIAS Press, 2002) at 44Google Scholar, ranks the SCS fourth in the nineteen richest fishing zones in the world.

16. For definition see infra note 49.

17. Wang, supra note 7 at 535–6. See Plate 13 in Valencia, Van Dyke, and Ludwig, supra note 1 at 266 for the migration route of yellowfin tuna in the SCS.

18. Wang, supra note 17, at 534.

19. Rosenberg, supra note 15 at 62.

20. Among the parties to the Spratly Island disputes, only in Brunei do fisheries play an insignificant role in an economy where industry makes up almost three-quarters of the GDP.

21. Rosenberg, supra note 15 at 62. See FAO, The State of World Fisheries and Aquaculture 2008 (Rome: Food and Agriculture Organization of the United Nations, 2009) at 154.

22. See FAO, supra note 21, at 171–2.

23. Declaration on the Conduct of Parties in the South China Sea, reproduced in Alan Vaughan LOWE and Stefan TALMON, eds., The Legal Order of the Oceans: Basic Documents on the Law of the Sea (Oxford: Hart Publishing, 2009) at 69Google Scholar.

24. Declaration on the Conduct of Parties in the South China Sea, Preamble at para. 2.

25. China's Instrument of Accession, online: 〈http://www.aseansec.org/15271.htm〉

26. The latest incident involving the use of force was in early July 2007 when Chinese naval vessels fired on a group of Vietnamese fishing boats near the Spratly Islands, killing one Vietnamese fisherman and sinking one boat. See MITTON, Roger, “Vietnam, China Clash Again over Spratlys” Straits Times (19 July 2007)Google Scholar. For other incidents involving the use of force, see the International Boundaries Research Unit's (IBRU) searchable Boundary Archive webpage at 〈http://www.dur.ac.uk/ibru/resources/newsarchive/〉 (1991–2001) and reports on China-Southeast Asia on the Comparative Connections webpage at 〈http://csis.org/program/comparative-connections〉 (1999–present).

27. MA Liyao, “Chinese Fishermen held in Philippines” China Daily (2 June 2010) (reporting that in May 2010 nine Chinese fishermen were arrested by the Philippines near a feature of the Spratly Islands, and twenty-eight others were arrested within ten days by other coastal states in the SCS while these fishermen were working in “China's traditional waters”.) It should be noted that this type of arrest is not typically directed against Chinese fishermen. Newspapers from Vietnam also reported the arrest of Vietnamese fishermen fishing in the South China Sea. According to the statistics of the Vietnamese Ministry of Agriculture and Rural Development, between 2006 and 2010, 1,186 vessels with 7,045 fishermen were arrested by foreign authorities in 641 incidents and 751 fishermen are being detained abroad. See “Ng dân Vit Nam b Malaysia bt gi ngày càng nhiu” [in Vietnamese: More and more Vietnamese fishermen have been arrested by Malaysian authorities], online: 〈http://vitinfo.com.vn/Muctin/Xahoi/LA78120/default.htm〉. Though the geographical locations of these arrests are not specified, it is reasonable to believe that they include incidents in the Spratly Islands area. See also Malaysian National News Agency, “252 Foreign Fishermen Detained in First Six Months” Bernama (30 June 2010).

28. MORTON, Brian, “Fishing for Diplomacy in China's Seas” (2003) 46 Marine Pollution Bulletin 795 at 795Google Scholar, reporting the arrest of Thai and Indonesian fishermen in the SCS by Malaysia and the Philippines respectively.

29. For example, the Philippine Justice Secretary asked the Foreign Secretary in September 2002 to declare China's ambassador a persona non grata because of the latter's bullying tactics in trying to secure the release of 122 mainland Chinese detained for fishing illegally in Philippine waters. See Morton, supra note 28.

30. See “China Starts Regular Patrols of South China Sea” Xinhua (25 April 2010); CLEM, Will, “Patrol Boats to Escort Fishing Vessels in Disputed Spratlys” South China Morning Post (3 April 2010)Google Scholar.

31. Clem, supra note 30.

32. Vietnam Ministry of Foreign Affairs, “Chinese Dispatch of Fishery Administration Ships to Truong Sa a Serious Violation of Vietnam's Sovereignty”, Press and Information Department of the Ministry of Foreign Affairs (5 April 2010), online: 〈http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns100405191529GBL9iiKolEER〉.

33. [in Chinese: Rushi FAN, Miao XING, and Donghua ZHOU, “Malaysian Military Ship Harassed Chinese Fishery's Guards”, Jinyang Web – Xinkua Newspaper, 1 May 2010], online: 〈http://news.online.sh.cn/news/gb/content/2010-05/01/content_3465483.htm〉.

34. This typically occurs to tuna. See Rosenberg, supra note 15 at 64.

35. Ibid., at 66.

36. Due to the presence of military garrisons on the Spratly Islands, no comprehensive survey involving all parties to the dispute has yet been conducted.

37. See e.g. Angel C. ALCALA, “Summary of the Marine Biology Results of JOMSRE-SCS I, II, and IV and Their Management Implications”; and NGUYEN Van Long, PHAN Kim Hoang, and HOANG Xuan Ben, “Status of the Marine Biodiversity in the Northern Spratly Islands, South China Sea”; and Brian STOCKWELL and NGUYEN Van Long, “Reef Fish Stocks of the Northern Spratly Islands: A Summary of the Findings of JOMSRE-SCS III and JOMSRE-SCS IV” in Angel C. ALCALA, ed., Proceedings of the Conference on the Results of the Philippines-Vietnam Joint Oceanographic and Marine Scientific Research Expedition in the South China Sea (JOMSRE-SCS I to IV), 26−29 March 2008, Ha Long City, Vietnam (Dumaguete: Silliman University Press, 2008), 5, 11, 21, respectively.

38. Alex PAL, “Spratly's Fish Stock Dwindling, Say Scientists” Inquirer (3 May 2007).

39. See Clive SCHOFIELD and Ian TOWNSEND-GAULT, “Brokering Cooperation Amidst Competing Maritime Claims: Preventative Diplomacy in the Gulf of Thailand and South China Sea” in Aldo E. CHIRCOP, Ted L. MCDORMAN, and Susan J. ROLSTON, eds., The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden: Martinus Nijhoff Publishers, 2009), 643 at 649Google Scholar, stating that Taiwan will become a member of UNCLOS should it be allowed to.

40. See PARK Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (The Hague: Kluwer Law International Law, 2000) at 14Google Scholar. In the following discussion, an attempt will be made to demonstrate that UNCLOS provisions applicable to fisheries co-operation in the SCS represent rules of customary international law and hence are binding upon Taiwan.

41. Historically, exclusive fishing rights were one of the reasons for the establishment and extension of a coastal state's sovereignty over the territorial sea. With the advent of the EEZ, the significance of fishing rights subsumed within the concept of sovereignty over the territorial sea was, however, reduced greatly. For a history of the territorial sea, see Thomas Wymess FULTON, The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters (Edinburgh/London: William Blackwood and Sons, 1911)Google Scholar. For the development of the concept of the EEZ and the impact of fishing rights upon the extension of states’ maritime zones, see David Joseph ATTARD, The Exclusive Economic Zone in International Law (Oxford: Clarendon Press, 1987)Google Scholar.

42. EVANS, Malcolm D., “The Law of the Sea” in Malcolm D. EVANS, ed., International Law, 3rd edn. (Oxford: Oxford University Press, 2010), 651 at 653CrossRefGoogle Scholar, states that “[UNCLOS] provides the starting point for any presentation of the contemporary law of the sea”.

43. UNCLOS, supra note 8, art. 56(1)(a).

44. The ICJ in the Continental Shelf (Libya v. Malta) [1985] I.C.J. Rep. 13, para. 34, states “[i]t is … incontestable that … the institution of the exclusive economic zone … is shown by the practice of States to have become a part of customary law”. This is the view of the majority of scholarly writings on the law of the sea and the EEZ. See Attard, supra note 41 at 291–2 (reviewing state practice of 1975–1985); KWIATKOWSKA, Barbara, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht: Martinus Nijhoff Publishers, 1989) at 91–92Google Scholar (claiming the obligations of customary nature restrict the discretion of states in the exercise of their sovereign rights in the EEZ); Carl August FLEISCHER, “Fisheries and Biological Resources” in René-Jean DUPUY and Daniel VIGNES, eds., A Handbook on the New Law of the Sea 2 (Dordrecht: Martinus Nijhoff, 1991), 989 at 1076–1078Google Scholar (arguing the institution of EEZ contains not only the rights but also the obligations of coastal states). VUKAS, Budislav, The Law of the Sea: Selected Writings (Leiden: Martinus Nijhoff Publishers, 2004) at 116Google Scholar (stating that the regime of EEZs forms part of the body of customary law of the sea, the implication being that all fundamental norms concerning the rights and duties of coastal and other states are also part of customary law). For an alternative view, see CHURCHILL, Robin R. and Alan Vaughn LOWE, The Law of the Sea, 3rd edn. (Manchester: Manchester University Press, 1999) at 161Google Scholar, 290 (accepting the customary nature of coastal states’ rights in the EEZ, principally Articles 56 and 58, but doubting the customary nature of other provisions, particularly Articles 61 and 62).

45. UNCLOS, supra note 8, art. 61(1).

46. Ibid., art. 61(2).

47. Ibid., art. 61(3).

48. Ibid., art. 62(1).

49. The term “transboundary stock” does not appear in the Convention. This term is, however, coined in the Commentary on UNCLOS prepared by the Virginia Centre for Ocean Law and Policy to distinguish stock migrating between the EEZs of more than one state (transboundary stocks) from stocks between EEZs and adjacent high seas (straddling stocks). See NANDAN, Satya N., Shabatai ROSENNE, and GRANDY, Neal R., eds., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (Dordrecht: Martinus Nijhoff, 1993) at 640Google Scholar. This distinction is adopted by the FAO in the organization's documents and papers. See e.g. FAO Code of Conduct for Responsible Fisheries, para. 7.1.3; Daniel OWEN, “Legal and Institutional Aspects of Management Arrangements for Shared Stocks with Reference to Small Pelagics in Northwest Africa”, FAO Fisheries Circular 988 (Rome: FAO, UN, 2003) at 1; Gordon Ross MUNRO, Annick VAN HOUTTE, and Rolf WILLMANN, “The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects”, FAO Fisheries Technical Paper 465 (Rome: FAO, UN, 2004) at 3. Churchill and Lowe, supra note 44 at 249, however, use “shared/joint stock” to denote fish stocks migrating through the EEZs of more than one state. HEY, Ellen, The Regime for the Exploitation of Transboundary Marine Fisheries Resources: The United Nations Law of the Sea Convention Cooperation Between States (Dordrecht: Martinus Nijhoff, 1989)Google Scholar, by contrast, uses the term “transboundary stocks” to denote both fish stocks between the EEZs and those between the EEZs and adjacent high seas.

50. See “Note on the use of the word ‘shall’ ” in Nandan, Rosenne, and Grandy, supra note 49, at xlv.

51. Ibid., at 644.

52. Ibid., at 646. See also Churchill and Lowe, supra note 44 at 294; “International Committee on the EEZ Part II: Report” (1992) 65 International Law Association Reports of Conferences 254, para. 12.

53. KAYE, Stuart B., International Fisheries Management (The Hague: Kluwer Law International, 2001) at 114–115Google Scholar. For general principles of law relating to transboundary natural resources other than fish, see Hey, supra note 49, chapter 3. Kwiatkowska, supra note 44 at 92, suggests that this duty to co-operate has the character of emergent or emerging principles or rules of customary law.

54. CHURCHILL, Robin R., “The Management of Shared Fish Stocks: The Neglected ‘Other’ Paragraph of Article 63 of the UN Convention on the Law of the Sea” in Anastasia STRATI, Maria GAVOUNELI, and Nikolaos SKOURTOS, eds., Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After (Leiden: Martinus Nijhoff Publishers, 2006), 3 at 11Google Scholar.

55. Nandan, Rosenne, and Grandy, supra note 49, at 647.

56. Ibid., at 801, 954.

57. As will be seen below, the difference in the characteristics of the living and non-living resources in the EEZ and continental shelf respectively is of degree rather than in kind. See infra at p. 14.

58. The paragraph contains another sentence relating to the non-prejudicial nature of this type of arrangement. This will be addressed in the next section when discussing the “without prejudice clause” in fisheries co-operation agreements. See infra at pp. 19–20.

59. See supra note 50. See also Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII, of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration Between Guyana and Suriname, Award, 17 December 2007, para. 461 [Guyana/Suriname Arbitration]; Rainer LAGONI, “Interim Measures Pending Maritime Delimitation Agreements” (1984) 78 American Journal of International Law 345 at 353.

60. Nandan, Rosenne, and Grandy, supra note 49 at 815, 984, cited with approval in Guyana/Suriname Arbitration, supra note 59, para. 461.

61. See Nandan, Rosenne, and Grandy, supra note 49 at 815, 984; Lagoni, supra note 59 at 354–8, 362–6. Guyana/Suriname Arbitration, supra note 59, para. 459.

62. Nandan, Rosenne, and Grandy, supra note 49, at 815, 984; Lagoni, supra note 59 at 354; MIYOSHI Masahiro, “The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf” (1988) 3 International Journal of Estuarine and Coastal Law 1 at 12Google Scholar.

63. See infra at pp. 17–18.

64. Lagoni, supra note 59 at 362.

65. See Nandan, Rosenne, and Grandy, supra note 49 at 815, 984; Lagoni, supra note 59 at 362.

66. See Reports of the Chairman of Negotiating Group 7 of 20 April 1979 and of 22 August 1979, reproduced in Renate PLATZÖDER, Third United Nations Conference on the Law of the Sea: Documents Vol. IX (London: Oceana Publications, 1986) at 459 and 468Google Scholar respectively.

67. See Guyana/Suriname Arbitration, supra note 59, para. 470.

68. It should be noted that Ireland's early proposal on a moratorium of economic activities in the disputed area was made on the assumption that states would make bona fide claims in accordance with delimitation principles, i.e. median/equidistant line combined with equitable principles. See Ireland: Draft Article on Delimitation of Areas of Continental Shelf Between Neighbouring States, UN Doc. A/CONF. 62/C.2/L.43 (1974).

69. Though writings of scholars share a lot of common ground with international courts and tribunals on this issue, the influence of the latter is clearly greater in the development of the law. See Pierre-Marie DUPUY, “Formation of Customary International Law and General Principles” in Daniel BODANSKY, Jutta BRUNNÉE, and Ellen HEY, eds., The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007), 449 at 460Google Scholar, 462.

70. Guyana/Suriname Arbitration, supra note 59.

71. Suriname's Submissions 2.C, at Guyana/Suriname Arbitration, supra note 59, paras. 161, 456.

72. Ibid., para. 465 (citing Virginia Commentary), para. 481.

73. Ibid., paras. 467, 479.

74. The Tribunal borrows this standard from the regime of interim measures developed in the Aegean Sea Continental Shelf (Greece v. Turkey) case. See Guyana/Suriname Arbitration, supra note 59, paras. 468–9.

75. Guyana/Suriname Arbitration, supra note 59, paras. 466–7. Thus seismic testing is not inconsistent with an obligation to make every effort not to jeopardize or hamper the reaching of a final agreement. See para. 481.

76. Ibid., paras. 466–7.

77. Ibid., para. 470 (emphasis added).

78. CHURCHILL, Robin R., “Fisheries Issues in Maritime Boundary Delimitation” (1993) 17 Marine Policy 44 at 51Google Scholar, argued that there is no prohibition of fishing in a disputed EEZ comparable to an obligation not to exploit a disputed continental shelf. This statement was later qualified by an acknowledgement that whether or not such an obligation existed depended on the interpretation of Article 74(3). See Churchill and Lowe, supra note 44 at 199.

79. Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Interim Protection Order, [1972] I.C.J. Rep. 12, para. 26, dispositif, para. 1(e) [Fisheries Jurisdiction (UK v. Iceland), Interim Protection Order]; Fisheries Jurisdiction (Germany v. Iceland), Interim Protection Order, [1972] I.C.J. Rep. 30, para. 27, dispositif, para. 1(e) [Fisheries Jurisdiction (Germany v. Iceland)].

80. This measure was proposed by the UK and Germany. See Fisheries Jurisdiction (UK v. Iceland), Interim Protection Order, ibid., paras. 23–4; Fisheries Jurisdiction Cases (United Kingdom v. Iceland): Request for the Indication of Interim Measures Submitted by the Government of Great Britain and Northern Ireland, I.C.J. Pleadings, Vol. I, 69, para. 19, and Fisheries Jurisdiction (Germany v. Iceland), Interim Protection Order, paras. 24–5; Fisheries Jurisdiction Cases (Germany v. Iceland): Request for the Indication of Interim Measures Submitted by the Government of the Federal Republic of Germany, I.C.J. Pleadings, Vol. II, 21, para. 18.

81. But it is submitted that the limit set by the Court was somewhat arbitrary and based on the existing fishing practice of the UK and Germany rather than a conservation consideration.

82. The Tribunal did so by prescribing several provisional measures which required, inter alia, Australia, Japan, and New Zealand not to exceed the annual limitations on the catch of southern bluefin tuna last agreed by the three countries, and to refrain from conducting an experimental fishing programme outside their respective catch limitations. See Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan) [2000] ITLOS Cases No. 3/4, dispositif, paras. c and d [Southern Bluefin Tuna].

83. It is submitted that the Tribunal's Order was not unambiguous on this point. In the case, Australia and New Zealand contended that Japan's unilateral implementation of the experimental fishing programme outside its catch limitation violated their rights under Articles 64 and 116 to 119 of UNCLOS and that further catches of southern bluefin tuna would cause immediate harm to their rights. See Southern Bluefin Tuna cases, paras. 68–9. The Tribunal, in making its order, however, relied on both conditions for the prescription of provisional measures under Article 290 of the Convention, that is, the preservation of rights and the prevention of serious harm to the marine environment. See Southern Bluefin Tuna, para. 67. Judge Laing, in his Separate Opinion, para. 18, argued that the order should be based on the preservation of rights. Contrast Judge Treves, Separate Opinion, para. 6, who implied that, in the instant case, the two conditions for prescribing provisional measures are interrelated because the rights to be protected concerned the conservation of the southern bluefin tuna stock, which was also an element in the protection and preservation of the marine environment.

84. A fishery will collapse when both “growth overfishing” and “recruitment overfishing” occur. The former means fish are caught too soon, that is, they are taken before they grow to the maximum biomass size; the latter means the number of spawners are severely reduced, resulting in the production of insufficient offspring to replenish the population of fish of catchable sizes (recruits). See IVERSEN, Edwin S., Living Marine Resources: Their Utilization and Management (New York: Chapman and Hall, 1996) at 247–248CrossRefGoogle Scholar. The recovery rate of each collapsed stock depends on its spawning ability. For many species which produce large amount of eggs every year, it is possible for them to recover quickly after collapse. However, for some creatures, such as whales, which calve annually or biannually, the recovering period may be decades.

85. Discussions on law enforcement at sea in law of the sea textbooks often take it as given that the relevant maritime jurisdictional zones are clearly delimited. Thus the issues studied are not the basis of law enforcement as such but its international legal standards, i.e. the limitations on the use of force, the criteria of hot pursuit, and consequences (liabilities) for wrongful acts of law enforcement. See e.g. Daniel Patrick O'CONNELL (Ivan Anthony SHEARER, ed.), The International Law of the Sea, Vol. 2 (Oxford: Clarendon Press, 1982)Google Scholar, chapter 28; ROTHWELL, Donald R. and Tim STEPHENS, The International Law of the Sea (Oxford: Hart Publishing, 2010)CrossRefGoogle Scholar, chapter 17; SOHN, Louis B. and Kristen GUSTAFSON, Law of the Sea in a Nutshell, 2nd edn. (St. Paul, MN: West, 2010) at 274–275Google Scholar, 413–22.

86. The Guyana/Suriname Arbitral Tribunal, however, glossed over the Surinamese statement that it was normal for coastal states to undertake law enforcement activities in disputed areas (usually in relation to fisheries) against vessels under foreign flags including the flag of the other party to the dispute, unless specific arrangements exist. Suriname's Rejoinder, 4.33; Guyana/Suriname Arbitration, supra note 59, para. 441.

87. Fisheries Jurisdiction (UK v. Iceland), Interim Protection Order, dispositif, para. 1(c); Fisheries Jurisdiction (Germany v. Iceland), Interim Protection Order, dispositif, para. 1(c). Iceland nevertheless declined to follow the Court's orders.

88. ROSENNE, Shabtai, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) at 207Google Scholar.

89. Fisheries Jurisdiction Case (UK v. Iceland), Merits Judgment [1974] I.C.J. Rep. 3, para. 20; Fisheries Jurisdiction Case (Germany v. Iceland), Merits Judgment [1974] I.C.J. Rep. 175, para. 21.

90. See The Case of the SS “Lotus” [1927] 10 Series A 3 at 18 [Lotus case]. See also BROWNLIE, Ian, Principles of Public International Law, 7th edn. (Oxford: Oxford University Press, 2008) at 309Google Scholar.

91. See the Lotus case, supra note 90 at 18–19.

92. See UNCLOS, supra note 8, art. 298(1).

93. See the judgment by the District Court of Groningen in X. v. the State Secretary for Agriculture, Nature Management and Fisheries, Council of State, Administrative Law Division on 17 May 2001, in which it opined that “each country considers that its national law is applicable in the area concerned because its legislation applies to what it considers to be its territory” and that “the Ems-Dollard Treaty [a provisional arrangement] was and is to prevent conflicts arising as a consequence of the fact that both countries apply their national laws in the disputed area”. Relevant extract reproduced in L.A.N.M. (Bert) BARNHOORN, “Netherlands Judicial Decisions Involving Questions of Public International Law, 2003–2004” (2005) 36 Netherlands Yearbook of International Law 427 at 477–481Google Scholar, 479. The District Court's judgment was quashed by the Administrative Court but for a different reason.

94. Guyana/Suriname Arbitration, supra note 59, para. 445 (emphasis added), citing S.S. “I'm Alone” (Canada/United States) [1933, 1935] 3 RIAA 1615 [I'm Alone case], Red Crusader (Commission of Enquiry, Denmark-United Kingdom) [1962] 35 International Law Report 199 [Red Crusader], The M/V “SAIGA” Case (Saint Vincent and the Grenadines v. Guinea) [1999] ITLOS List of Cases: No 2 [SAIGA case]. This is arguably a customary rule. See GUILFOYLE, Douglas, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009) at 277–282CrossRefGoogle Scholar.

95. SAIGA case, supra note 94, para. 155.

96. Ibid., para. 156, citing the “I'm Alone” and Red Crusader cases.

97. Guyana/Suriname Arbitration, supra note 59, para. 445.

98. Ibid., para. 484.

99. Arnold Duncan MCNAIR, The Law of Treaties (Oxford: Clarendon Press, 1961) at 20Google Scholar. See also CHENG, Bin, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953) at 116–117Google Scholar.

100. Lake Lanoux Arbitration (France v. Spain) [1957] 24 International Law Reports 101 at 128 [Lake Lanoux Arbitration].

101. This is the fundamental difference between pactum de negotiando and pactum de contrahendo, the latter requiring a certain outcome from the negotiations, i.e. the conclusion of a treaty. See Agreement on German External Debts Arbitration (Greece v. Federal Republic of Germany), 47 International Law Reports 418 at 453. See also OWADA Hisashi, “Pactum de contrahendo, pactum de negotiando” in Rüdiger WOLFRUM, ed., Max Planck Encyclopedia of Public International Law (Oxford Online Edition: Oxford University Press, 2008)Google Scholar; McNair, supra note 99 at 18–20. Contrast with Ivan Anthony SHEARER, “High Seas: Drift Gillnets, Highly Migratory Species and Marine Mammals” in KURIBAYASHI Tadao and Edward L. MILES, eds., The Law of the Sea in the 1990s: A Framework for Cooperation (Honolulu: Law of the Sea Institute, 1992), 243 at 245Google Scholar; BEYERLIN, Ulrich, “Pactum de Contrahendo, Pactum de Negotiando” in Rudolf BERNHARDT, ed., Encyclopedia of Public International Law 7 (Amsterdam: Holland, 1984), 375 at 376Google Scholar, arguing that the difference between these two obligations is no longer meaningful as the requirement of best efforts to resolve a dispute in good faith is the principal element of both duties. The Tribunal in the Barbados/Trinidad and Tobago Arbitration also appears to consider the distinction insignificant when talking about a “duty to agree” in the sense of the duty to negotiate, partly because of the commitments made by the agents of the parties before the Tribunal. See Barbados/Republic of Trinidad and Tobago [2006] XXVII RIAA 147, paras. 286–93.

102. Railway Traffic Between Lithuania and Poland [1931] PCIJ Series A/B, No. 42 108, 116.

103. As regards the “obligation to negotiate” under Articles 74(3) and 83(3), see Guyana/Suriname Arbitration, supra note 59, para. 461.

104. Cheng, supra note 99 at 118.

105. The principle of “good faith” implies the observance by states of a certain standard of fair dealing. See Cheng, supra note 99 at 107–17.

106. The Arbitral Tribunal in the Guyana/Suriname Arbitration ruled that Suriname failed to meet its obligation to negotiate under Articles 74(3) and 83(3) of UNCLOS for, inter alia, its failure to respond to Guyana's new draft and to continue negotiations with Guyana. See Guyana/Suriname Arbitration, supra note 59, paras. 473–74.

107. Lake Lanoux Arbitration, supra note 100 at 130.

108. North Sea Continental Shelf Cases (Federal Republic of Germany v. Demark and Federal Republic of Germany v. Netherlands) [1969] I.C.J. Rep. 3, para. 85 (emphasis added). See also Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain) [2001] I.C.J. Rep. 40, 119; Agreement on German External Debts Arbitration (Greece v. Federal Republic of Germany) [1974] 47 International Law Reports 418 at 453; Guyana/Suriname Arbitration, supra note 61, para. 461.

109. Guyana/Suriname Arbitration, supra note 59, para. 461.

110. See Gerald FITZMAURICE, “The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points” (1957) 33 British Year Book of International Law 203 at 210. See also Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980), art. 31(3)(b).

111. For a summary account of agreements on transboundary stocks, see Owen, supra note 49. Contrast with Churchill, supra note 54 at 13, stating that Owen's study contains only twenty-eight proper arrangements relating to transboundary stocks and there are ten more agreements.

112. For a useful description of existing agreements up to 2000, see KIM Sun Pyo, Maritime Delimitation and Interim Arrangements in North East Asia (The Hague: Martinus Nijhoff, 2004), chapters 3, 5.

113. Churchill, supra note 78 at 45–50, classifying, in order of comprehensiveness and effectiveness, arrangements on fisheries activities in disputed EEZs into four categories, namely “grey zone” agreements, “light grey zone” agreements, “white zone” agreements, and “miscellaneous agreements”. The last category embraces the 1981 Australia-Indonesia Memorandum of Undestanding on a provisional boundary line (see infra note 115), and two other agreements which arguably fall into Churchill's loosely defined concept of “light grey zone” agreements. See infra note 130.

114. It should be noted that not all fisheries arrangements fit neatly within one category. For example, the Agreement on Fisheries Between Japan and the Republic of Korea, signed on 23 November 1998, [1998 Japan-South Korea Fisheries Agreement], combines elements of a grey zone agreement and a provisional fishing boundary agreement; the Agreement on Fisheries Between the People's Republic of China and the Republic of Korea, signed on 3 August 2000 [2000 China-South Korea Fisheries Agreement] contains elements of both a grey zone agreement and a white zone agreement. For a useful summary of these two agreements, see Kim, supra note 112 at 249–72. For text, see Kim, supra note 112, Appendices 2 and 4, at 327ff and 347ff respectively.

115. See e.g. Memorandum of Understanding between the Government of Australia and Government of the Republic of Indonesia Concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement [Memorandum of Understanding], 29 October 1981 (entered into force on 1 February 1982), reproduced in CHARNEY, Jonathon I. and ALEXANDER, Lewis M., eds., International Maritime Boundaries II (Dordrecht: Martinus Nijhoff, 1993) at 1238ffGoogle Scholar; Norwegian Declaration attached to the 1978 Norway-Russia Grey Zone Agreement; Protocol Amending the Convention Between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Area, 29 March 1979 [1979 Canada-US Halibut Protocol], art. VI, text reproduced in NORDQUIST, Myron H. and SIMMONDS, Kenneth R., eds., New Directions in the Law of the Sea IX (Dobbs Ferry, NY/London: Oceana Publications; British Institute of International and Comparative Law, 1980) at 233–249Google Scholar; Agreement on Fisheries Between the People's Republic of China and Japan, signed on 11 November 1997 [1997 China-Japan Fisheries Agreement], art. 12, English translation in Kim, supra note 112, Appendix 3 at 338ff; 1998 Japan-South Korea Fisheries Agreement, supra note 114, art. 15.

116. Lagoni, supra note 59 at 359.

117. Contrast with Fisheries Jurisdiction (UK v. Iceland), Merits Judgment, supra note 91, paras. 37–41.

118. Minquiers and Ecrehos (France v. United Kingdom), [1953] I.C.J. Rep. 47.

119. Ibid., at 58.

120. Ibid.

121. A sovereignty neutral clause is particularly important in any future arrangements relating to the Spratly Islands dispute given the fact that some parties to the dispute are reluctant to retreat from assertions of sovereignty.

122. See Memorandum of Understanding, supra note 115. Another agreement is the Agreement on Provisional Arrangements for the Delimitation of the Maritime Boundaries Between the Republic of Tunisia and the People's Democratic Republic of Algeria (with Annex of 7 August 2002), 11 February 2002, 2238 U.N.T.S. 197 (entered into force 23 November 2003).

123. This means that the provisional line applies only to pelagic fisheries and jurisdiction over sedentary species in the region is regulated by seabed agreements.

124. It was also agreed that the arrangement would have no effect on the position of Indonesian traditional fishermen operating in accordance with the Memorandum of Understanding Between the Government of Australia and the Government of the Republic of Indonesia Regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf, 7 November 1974.

125. Ibid., para. 6. But see comments by PRESCOTT, Victor, “Report No. 6–2(4)” in Charney and Alexander, supra note 115, 1229 at 1230–1Google Scholar. It turned out that the Australia-Indonesia Provisional Fisheries Surveillance and Enforcement Arrangement later became the EEZ boundary between the two countries with minor modifications in the Treaty Between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997, online: 〈http://www.un.org/Depts/los〉.

126. The term is believed to originate from the Norway-Russia Grey Zone Agreement. See Churchill, supra note 78 at 45. The full name of the agreement is Agreement of 11 January 1978 between Norway and the Soviet Union on a Temporary Practical Arrangement for Fishing in an Adjacent Area in the Barents Sea, with Attached Protocol on a Temporary Arrangement for Fishing in an Adjacent Area in the Barents Sea in Overenskomster med Fremmede Stater (Norwegian Treaty Series) 436 (English translation on file with the author) [1978 Norway-Russia Grey Zone Agreement]. The Agreement was intended to last for one year after its conclusion but has been renewed annually since then. It is reported that the Grey Zone Agreement will be terminated upon the entry into force of the recently concluded Delimitation Agreement between Norway and Russia. See infra note 149.

127. See Churchill, supra note 78 at 45; Lagoni, supra note 59 at 360.

128. This term originates from a series of agreements concluded by Sweden with its Baltic neighbours. See Churchill, supra note 78 at 49.

129. Such a restraint is implied in the oblique para. b of the Protocol to Agreement Between the Government of the Kingdom of Sweden and the Government of the Union of Soviet Socialist Republics on Mutual Relations in the Field of Fisheries, 22 December 1977, 213 (entered into force 24 January 1980). The said paragraph reads “Neither party shall take unilateral action likely to affect the outcome of future negotiations concerning delimitation”. For interpretation of this paragraph, see Churchill, supra note 78 at 49.

130. “Light grey zone” agreements, thus loosely defined, arguably include Churchill's two “miscellaneous agreements”, namely the 1977 Canada-United States Reciprocal Fisheries Agreement (which provides, in order to avoid disputes concerning enforcement, that each state will enforce laws and regulations against vessels flying its flag or of third states but not against vessels of the other state and that neither party will allow a third state's vessels to fish in the disputed area), and the 1989 Canada-France Agreement (which deals with not only fisheries in the disputed area but also French fishing in undisputed parts of the Canadian EEZ). See Churchill, supra note 78 at 45–50. For the texts of the agreement, see 1077 U.N.T.S. 55 (1977 Canada-United States Reciprocal Agreement) and (1990) 29 International Legal Materials 7 (1989 Canada-France Agreement).

131. See statement by the Chairman of the Negotiating Group 7 on 12 September 1978 on Interim Measures, Document NG7/23 reproduced in Platzöder der, supra note 66 at 528.

132. In the case of the “white zone” agreement, the area of application is considered as “high seas”. See Churchill, supra note 78 at 48–9.

133. See e.g. 1998 Japan-South Korea Fisheries Agreement, supra note 114, Annex II.

134. For example, under the 1978 Norway-Russia Grey Zone Agreement, the parties assume during the validity of the Agreement that the area within 200 nautical miles of the Soviet coast is regarded by the USSR as a Soviet area of fisheries jurisdiction while the area within 200 nautical miles of the Norwegian coast north of the Grey Zone is regarded as being part of Norway's economic zone (though an area within 200 nautical miles of Norwegian coast and beyond 200 nautical miles of the Soviet coast is curiously regarded as high seas). See CHURCHILL, Robin R. and Geir ULFSTEIN, Marine Management in Disputed Areas: The Case of the Barents Sea (London: Routledge, 1992) at 66–67Google Scholar.

135. Jean-Pierre BOUVET, L'unité de Gisement (Paris: L'Harmattan, 2004) at 197–202Google Scholar.

136. Samuel Whittemore BOGGS, International Boundaries: A Study of Boundary Functions and Problems (New York: Columbia University Press, 1940) at 22Google Scholar; Victor PRESCOTT and Gillian Doreen TRIGGS, International Frontiers and Boundaries: Law, Politics and Geography (Leiden: Martinus Nijhoff Publishers, 2008) at 11–12Google Scholar. See also Anthony Oye CUKWURAH, The Settlement of Boundary Disputes in International Law (Manchester: Manchester University Press, 1967) at 11–12Google Scholar. The concept is applied by Johnston in the case of maritime delimitation: JOHNSTON, Douglas M., The Theory and History of Ocean Boundary-Making (Kingston: McGill-Queen's University Press, 1988) at 3Google Scholar. In daily usage, the two terms, “frontier” and “boundary”, are, however, used interchangeably. In French, the word “frontière” can mean both a line and a zone and there is no equivalent to the English word “boundary”. See GRANT, John P. and J. Craig BARKER, Parry and Grant Encyclopaedic Dictionary of International Law, 3rd edn. (Oxford: Oxford University Press, 2009) at 229CrossRefGoogle Scholar, stating that “[t]hough [the term ‘frontier’] is frequently used interchangeably with the term boundary, it perhaps has a less exact significance, connoting a zone with width or depth as well as length”. Contrast with Jean SALMON, ed., Dictionnaire de Droit International Public (Bruxelles: Bruylant, 2001), 520–1. French writers sometimes use the word “frontière-zone” as equivalent to the English term “frontier” and “frontière-ligne” or “la limite” to “boundary”.

137. Abdalla Ali EL-ERIAN, Condominium and Related Situations in International Law: With Special Reference to the Dual Administration of the Sudan and the Legal Problems Arising out of It (Cairo: Fouad I University Press, 1952) at 99Google Scholar. For the classification of condominia into different types, i.e. frontier, colonial, and succession condominia, and examples, see CORET, Alain, Le Condominium (Paris: Librairie gènèrale de droit et de jurisprudence, 1960) at 133–235Google Scholar.

138. It is, however, noteworthy that in recent provisional arrangements, the frontier application area functions to delimit both the water column and the seabed. See e.g. Treaty Between the Federal Republic of Nigeria and the Democratic Republic of São Tomé and Principe on the Joint Development of Petroleum and Other Resources, in Respect of Areas of the Exclusive Economic Zone of the Two States, 21 February 2001 (entered into force 16 January 2003); Exclusive Economic Zone Co-operation Treaty Between the State of Barbados and the Republic of Guyana Concerning the Exercise of Jurisdiction in Their Exclusive Economic Zones in the Area of Bilateral Overlap Within Each of Their Outer Limits and Beyond the Outer Limits of the Exclusive Economic Zones of Other States, 2 December 2003, 2277 U.N.T.S. 201 (entered into force 5 May 2004).

139. Though it is possible to argue that the flag state enforcement scheme can serve to prevent dispute over enforcement, the problem of fishing vessels flying the flag of a third state still persists.

140. Churchill, supra note 78 at 47.

141. See e.g. Protocol to the 1978 Norway-Russia Grey Zone Agreement, supra note 126, para. 3; 1998 Japan-South Korea Agreement, supra note 114, Annex, paras. 2 and 3.

142. See e.g. Protocol to the 1978 Norway-Russia Grey Zone Agreement, supra note 126, para. 10(b).

143. See Churchill and Ulfstein, supra note 134 at 67, stating that flag state enforcement (or split jurisdiction) is important for Norway as it voids any suggestion that the “grey zone” is an area of joint jurisdiction or a kind of condominium.

144. Ibid., at 82.

145. See e.g. 1977 Canada-US Reciprocal Fisheries Agreement, supra note 130, art. IX (1); 1979 Canada-US Protocol amending the 1953 Convention for the preservation of the halibut fishery of the Northern Pacific Ocean and Bering Sea, 1273 U.N.T.S. 270, Annex, para. 16 (a); 1989 Canada–France Agreement, supra note 130, para. 4(b).

146. See e.g. 1977 Canada–US Reciprocal Fisheries Agreement, supra note 130, art. IX(3); 1979 Canada–US Protocol, supra note 145, Annex, para. 16 (c). The 1989 Canada–France Agreement, supra note 130, is, however, silent on this issue (presumably because the disputed area lay wholly within Canada's EEZ claim).

147. Churchill, supra note 78 at 49.

148. See OUDE ELFERINK, Alex G., The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation (Dordrecht: Martinus Nijhoff, 1994) at 213Google Scholar.

149. Churchill and Ulfstein also speculate on other reasons for such a delay in negotiations, such as Russia's security considerations and buying time negotiation tactic. Churchill and Ulfstein, supra note 134 at 82–3. It was not until 2010 that agreement was reached on the delimitation of the area in the Barents Sea. The delimitation treaty was reportedly signed between Norway and Russia on 15 September 2010. See Office of the Prime Minister (Norway), “Treaty on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean Signed Today”, Press Release No. 118/10 (15 September 2010).

150. See MCDORMAN, Ted L., “Canada-United States Cooperative Approaches to Shared Marine Fishery Resources: Territorial Subversion” (2008–9) 30 Michigan Journal of International Law 665 at 681Google Scholar, considering the 1979 Canada–US Halibut Protocol as a success in protecting the species. See also, Churchill, supra note 78 at 49.

151. The fact that the agreement was initially envisaged to last for one year but has been continuously renewed since then testifies to its effectiveness. See also Churchill, supra note 78 at 46; and Churchill and Ulfstein, supra note 134 at 114, stating that the Norway-Russia Grey Zone Agreement works well.

152. For a succinct history of Canada-US co-operation in halibut before the 1979 Protocol, see BELL, F.H., “Agreements, Conventions and Treaties between Canada and the United States of America with respect to the Pacific Halibut Fishery”, Report of the International Pacific Halibut Commission, 1966, Vol. 50 at 5−22Google Scholar.

153. See “Report by the United States Secretary of State on the 1979 Canada-US Halibut Protocol dated 22 June 1979”, reproduced in part in Marian Lloyd NASH, Digest of United States Practice in International Law 1979 (Washington, DC: U.S. Government Printing Office, 1979) at 1035ffGoogle Scholar.

154. Churchill and Ulfstein, supra note 134 at 65.

155. TRESSELT, Per, “Norsk-Sovjetiske Forhandlinger om Avgrensning av Kontinentalsokler og Økonomiske Soner” [Norwegian-Soviet negotiations on the delimitation of continental shelves and economic zones] (1988) (2–3) Internasjonal Politikk 75 at 84Google Scholar.

156. Agreement Between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, 11 April 1975, 983 U.N.T.S. 3 (entered into force 11 April 1975).

157. These include Northeast Arctic cod, haddock, and capelin. See Churchill and Ulfstein, supra note 134 at 95. For an illustration of the migration patterns of these fish stocks, see at 97.

158. It is noted that the 1975 and 1976 agreements between Norway and Russia endure after the conclusion of the 2010 Delimitation Agreement. See Treaty Between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, Annex 1, art. 1, English translation of the agreement available at www.regjeringen.no/upload/SMK/Vedlegg/2010/avtale_engelsk.pdf.

159. See Kaye, supra note 53 at 148–9, 158, drawing a parallel with the obligation to co-operate in the case of high seas fisheries. For the latter obligation, see also ODA Shigeru, “Fisheries under the United Nations Convention on the Law of the Sea” (1983) 77 American Journal of International Law 739 at 751Google Scholar; FREESTONE, David, “The Effective Conservation and Management of High Seas Living Resources” (1994) 5 Canterbury Law Review 341 at 347Google Scholar.

160. Hey, supra note 49 at 22.

161. Though the provisional boundary arrangements arguably function no less effectively than real boundaries, it is difficult to compare the effectiveness of provisional boundary arrangements and that of grey zone arrangements. On the one hand, a provisional boundary functions no less effectively than a de jure final boundary in mitigating conflicts arising from fisheries. On the other hand, it has long been admitted that maritime delimitation, be it provisional or final, is not a panacea to the question of conserving fish stocks, which are by nature blind to man-made boundaries.

162. It is submitted that a light grey zone arrangement with no clear jurisdictional zone for coastal states is politically improbable.

163. For any grey zone agreement to operate, one critical issue is to delineate the application area. There have been several substantial studies on co-operative arrangement (mostly joint development of petroleum resources) in the SCS, which are instructive in this regard. One solution proposed by Valencia, Van Dyke, and Ludwig, supra note 1 at 205, and Nguyen, supra note 10 at 207, is to adopt the area beyond 200 nautical miles from coastal baselines as the application area. The latter study justifies this solution on the basis that the application area lies wholly within the maritime zones of the twelve features of the Spratly Islands which are considered to meet the criteria of Article 121 of UNCLOS to have an EEZ and continental shelf but not to generate full maritime zones when competing directly against the coastal state's mainland. See Nguyen, supra note 10, chapter 4, particularly at 163ff. The drawback of this solution is that the application area does not cover those features of the Spratly Islands lying within the 200 nautical mile EEZs of the coastal states. A more practical approach is to delineate the application area by connecting the outermost features of the Spratly Islands, that is, to practically draw “archipelagic baselines” around this group of islands. See Valencia, Van Dyke, and Ludwig, supra note 1 at 206. This solution, if standing alone, is not in conformity with UNCLOS. However, such a solution is arguably permissible if one accepts that some features of the Spratly Islands are entitled to an EEZ, thus leaving no high seas in the SCS, and provided that third state interests are protected in a future fisheries arrangement.

164. See NGUYEN Hong Thao, “The Declaration on the Conduct of Parties in the South China Sea” in Bateman and Emmers, eds., supra note 3 at 210, 215, 218Google Scholar.

165. See OXMAN, Bernard H., “The Third United Nations Conference On the Law of the Sea: The 1976 New York Sessions” (1977) 71 The American Journal of International Law 247 at 268Google Scholar.

166. Lagoni, supra note 59 at 360–1.

167. Though arguably as a functional arrangement the real raison d’être of the arrangement is the need to exploit the resource in question.

168. It is explained by a Norwegian official that Norway, based on her successful experience in the North Sea, prefers co-operation in exploring and exploiting oil and gas after delimitation, i.e. cross-border unitization co-operation. Interview with Mr Rolf Einar Fife, Director General of the Department for Legal Affairs of the Norwegian Ministry of Foreign Affairs, on 7 January 2010. The newly concluded Norway-Russia Delimitation Agreement now envisages the conclusion of such an agreement in the future. See Treaty Between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, Annex II, supra note 158. But it is argued that the principal reason is Norway's concern that joint development of oil and gas resembles a condominium. See Willy ØSTRENG, “Delimitation Arrangements in Arctic Seas: Cases of Precedence or Securing of Strategic/Economic Interests?” (1986) 10 Marine Policy 132 at 143Google Scholar; Churchill and Ulfstein, supra note 134 at 68. A similar attitude is adopted by Philippine politicians, who consider part of the Spratly Islands as their territory, thus opposing any co-operative arrangement in the area and refusing to renew the JMSU. See supra note 6.

169. On 18 June 2008, a “Joint Press Statement on the China-Japan Principled Consensus on Joint Development in the East Sea” (Joint Statement) was announced concurrently in Beijing and Tokyo, online: 〈http://www.fmprc.gov.cn/eng/xwfw/s2510/2535/t466632.htm〉. This principled consensus, however, only deals with a small fraction of the overlapping continental shelf between the two countries, deliberately avoiding the area involving the disputed Senkaku/Diaoyutai Islands. For comment, see GAO Jianjun, “A Note on the 2008 Cooperation Consensus Between China and Japan in the East China Sea” (2009) 40 Ocean Development and International Law 291Google Scholar.

170. It is not clear how China defines the Spratly Islands, but according to descriptions in Chinese literature, Chinese perception of the group may not coincide with that of Vietnam. See supra note 1.

171. Valencia, Van Dyke, and Ludwig, supra note 1 at 210–4, 218–21, propose two options for calculating the shares of benefits and costs in a joint development arrangement, one based on the extent of original claims and the other on the length of coastline bordering the SCS. These scholars, however, recognize the inherent difficulties with each option. For the former, the difficulties lie in the fact that China, Chinese Taipei (Taiwan), and Vietnam are not clear with regard to their original claims and that parties would be tempted to exaggerate their claims. For the latter, the disadvantage is that China, given its reduced share in comparison with the former option, has less incentive to participate in such an arrangement.

172. Lagoni, supra note 59 at 361.

173. Certainly, no allocation issue would arise should the parties adopt the white zone approach.

174. For a comprehensive appraisal of Taiwan's status under international law, see CRAWFORD, James R., The Creation of States in International Law, 2nd edn. (Oxford: Clarendon Press, 2006) at 198–221Google Scholar.

175. According to this solution, China and Chinese Taipei (Taiwan) should work out among themselves the division of responsibility, function, as well as the sharing of benefit in such an arrangement. See e.g. Valencia, Van Dyke, and Ludwig, supra note 1 at 209–19. See also Zou, “A New Model of Joint Development for the South China Sea”, supra note 4 at 166–8.

176. For a full account of Taiwan's participation in regional fisheries organizations and the WTO, see SERDY, Andrew, “Bringing Taiwan into the International Fisheries Fold: The Legal Personality of a Fishing Entity” (2005) 75 British Year Book of International Law 183Google Scholar. See also Wang, supra note 7 at 545–7, for an argument that Chinese Taipei (Taiwan) is eligible to participate in fisheries co-operation in the SCS.

177. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, (1995) 34 International Legal Materials 1542.

178. For a chronological description of Taiwan's participation in fisheries management regimes, see HO, Peter S.C., “The Impact of the U.N. Fish Stocks Agreement on Taiwan's Participation in International Fisheries For a” (2006) 37 Ocean Development and International Law 133CrossRefGoogle Scholar.

179. For analyses of the concept of “fishing entities”, see DJALAL, Hasjim, “The Emergence of the Concept of Fishing Entities: A Note”, (2006) 37 Ocean Development and International Law 117CrossRefGoogle Scholar; TSAMENYI, Martin, “The Legal Substance and Status of Fishing Entities in International Law: A Note” (2006) 37 Ocean Development and International Law 123CrossRefGoogle Scholar.

180. See TSENG Huan-Sheng and OU Ching-Hsien, “Taiwan and China: A Unique Fisheries Relationship” (2010) 34 Marine Policy 1156 at 1158Google Scholar.

181. See Sofia WU, “China to Send Fishery Delegation to Taiwan for Talks” Taiwan News (30 June 2009).

182. Compiled from Global Capture Production 1950−2008, online: http://www.fao.org/fishery/statistics/global-production/query/en, query made on 15 July 2010. nb: “F” means FAO estimate from available source of international or calculation based on specific assumptions.

183. Compiled from Commodities 1976−2006, online: http://www.fao.org/fishery/statistics/global-commodities-production/query/en, query made on 15 July 2010.