The United Nation convention on the law of the sea and fishery relations between Korea, Japan and China

Marine Policy 27 (2003) 111–124

The United Nation convention on the law of the sea and fishery relations between Korea, Japan and China Joon-Suk Kang* Ministry of Maritime Affairs and Fisheries, 139 Chungjong-No 3, Seodaemun-Gu, Seoul 120-15, South Korea Received 10 October 2002; accepted 3 November 2002

Abstract As contracting parties to the UN Convention, the ROK, PRC, and Japan have endeavoured to accept the UN Convention domestically as well as to develop their fishery relations with neighbouring countries. These measures must be a good basis to provide desirable management instruments for the conservation and management of fisheries resources in the region. In particular, laws and regulations prepared almost at the same time by the ROK and Japan use similar legal instruments and well reflect the spirit of the UN Convention. In addition, in order to reflect the UN Convention and resolve pending problems among coastal countries in the region, the 1965 the ROK–Japan Fishery Agreement and the 1975 Japan–PRC Fishery Agreement were basically revised and entered into force in January 1999 and February 2000, respectively, and the ROK-PRC Fishery Agreement was newly established and entered into force June 2001. Nevertheless, these agreements leave fundamental problems to be solved. r 2003 Elsevier Science Ltd. All rights reserved. Keywords: Fishery Agreements; Joint Fishery Committees; United Nations Convention on the Law of the Sea

1. Introduction Since the 1982 United Nations Convention on the Law of the Sea (UN Convention) entered into force on 16 November 1994, most marine fisheries resources have become subject to some form of coastal state control. Through the establishment of Exclusive Economic Zones (EEZs), coastal states are now entitled to exercise jurisdiction over marine fisheries resources up to 200miles from territorial sea baselines. As a result of the new regime almost all of the world’s conventional fishery resources have been brought within the jurisdiction of coastal nations, and the traditional fishing grounds of the long-range fleets have been rapidly closed. 131 of 151 coastal states now claim 200-mile EEZs and the world’s 200-mile limits now encompass more than 90 per cent of the major commercial resources. In response to this international trend and to exercise their sovereign right to exploit and regulate marine fisheries resources, the coastal states1—Republic of *Tel.: +82 3148 6114; fax: +82 3148 3115. E-mail address: [email protected] (J.-S. Kang). 1 The coastal states within this region are the ROK, Japan, the PRC, Democratic People’s Republic of Korea (DPRK), and Russia, and

Korea (ROK), the People’s Republic of China (PRC), and Japan—in the seas surrounding Korea have made efforts to accept ocean-related international law. As shown in Table 1, the ROK, the PRC, and Japan ratified the UN Convention, and Agreement on the Implementation of Part XI of the 1982 Convention (Seabed Agreement). Japan ratified the 1993 Agreement to promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement) in June 2000 but the ROK and PRC have not yet ratified it. The three countries have signed the 1995 United Nations Agreement for the Implementation of the Provisions of the UN Convention relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks (UNIA) but have not yet ratified it. All three countries have also taken follow-up measures for accepting these agreements domestically. The fishery relationship among the ROK, PRC and Japan has been (footnote continued) they are deeply involved in managing and utilising fishery resources. However, Russia is distant enough that it can be treated in some senses as an external actor. The DPRK is a major actor in this region but it is difficult to collect and analyse appropriate information or data on the DPRK. Therefore, this paper mainly covers the ROK, Japan and PRC.

0308-597X/03/$ - see front matter r 2003 Elsevier Science Ltd. All rights reserved. doi:10.1016/S0308-597X(02)00084-2

J.-S. Kang / Marine Policy 27 (2003) 111–124

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Table 1 Status of acceptance of ocean-related international laws ROK

Japan

PRC

UN Convention

Ratification: Jan 1996 (Signature: Mar 1983)

Ratification: Jun 1996 (Signature: Feb 1983)

Ratification: Jun 1996 (Signature: Dec 1982)

Territorial Sea

12 mile (Aug 1996), Some areas: 3 mile

12 mile (Jul 1996), Some areas: 3 mile

12 mile (Feb 1992)

Contiguous Zone

24 mile (Aug 1996)

24 mile (Jul 1996)

24 mile (Feb 1992)

EEZ

Effectuation: Sep 1996 (Promulgation: Aug 1996)

Effectuation: Jul 1996 (Promulgation: Jun 1996)

Effectuation: Jun 1998 (Promulgation: Jun 1998)

Effectuation of straight baseline

Apr 1978

Jan 1997

May 1996

Seabed Agreement

Ratification: Jan 1996 (Signature: Nov 1994)

Ratification: Jun 1996 (Signature: Jul 1994)

Ratification: Jun 1996 (Signature: Jul 1994)

Compliance Agreement

Ratification: not yet

Ratification: Jun 2000

Ratification: not yet

UNIA

Signature: Nov 1996

Signature: Nov 1996

Signature: Nov 1996

revised or newly developed in response to the new marine regime.

2. Attitudes toward the UN Convention 2.1. Before entry into force of the UN convention Japan. Among the countries bordering the Yellow/ East China Sea and the East Sea, the former Union of Soviet Socialist Republics (USSR) was the first state to introduce the 200-mile exclusive zone. The USSR established a 200-mile Exclusive Fishery Zone (EFZ) in 1976, which was replaced by a 200-mile EEZ in 1984. Japan was the second country after the USSR to establish a 200-mile exclusive zone. Until the fourth session of the United Nations Conference on the Law of the Sea ( UNCLOS III) in 1976, Japan had strongly opposed any special rights for coastal states in waters beyond the 12-mile limit, in matters of fisheries or otherwise [1]. However, when the USSR decided to establish a 200-mile EFZ in 1976, thus driving the Japanese fishermen off its coast, the Japanese government established its own EFZ in 1977 to retaliate against the USSR actions. However, Japan’s establishment of an EFZ raised some difficult questions. The most serious one was the possible effect of Japan’s decision on ROK and PRC activities in the East China Sea and the Yellow Sea, one of the most important fishing grounds for Japanese fishermen [2]. Since neither the ROK nor the PRC had adopted an EFZ of its own at that time, Japan believed that it was sensible not to

disrupt the status quo in this area. In May 1977, Japan decided to exclude the ROK and PRC from the application of the legislation establishing the 200-mile EFZ. Japan was concerned about the establishment of 200-mile EEZs or EFZs by the ROK and PRC, which would restrict Japanese fishing in ROK and PRC coastal waters. Exempted areas were the East China Sea, the Yellow Sea, and the East Sea east of longitude 1351 [3]. PRC. In contrast to Japan, the PRC was a strong supporter of the 200-mile regime from the beginning. Since joining the UN in 1971, the PRC has reiterated its support for the 200-mile regime on many occasions. However, when the EEZ regime had been firmly established internationally and became a new regime through the 1982 UN Convention, the PRC realised that there was no area in its own coastal waters where it could apply that limit in full because there were states opposite and adjacent to its own coast within 400 miles. These overlapping boundaries led the PRC to be reluctant to establish a 200-mile zone that would create more difficult problems of boundary delimitation [4]. ROK. The ROK officially supported the concept of the EEZ but was rather ambivalent about the emergence of this regime. This was because the establishment of 200-mile EEZs by coastal countries could have lead to a loss of traditional, distant-water fishing grounds around the world, as the ROK emphasised distant-water fisheries. What is worse, the establishment of such a zone would create more problems with its neighbours, in particular, Japan and the PRC. Therefore, the ROK,

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like Japan and the PRC, found it desirable to maintain the status quo in this region for the time being. [4, p. 10] 2.2. Since the entry into force of the UN convention 2.2.1. Territorial sea and contiguous zone The PRC established a 12-mile territorial sea in September 1958. Japan and the ROK also established 12-mile territorial seas in July 1977 and April 1978 respectively, except in the Korean Strait where it was limited to three miles in order to leave a high seas corridor through it. However, in accordance with the provisions of Article 4 of the UN Convention, the PRC, Japan, and the ROK adopted new ‘‘Laws on the Territorial Sea and Contiguous Zone’’ replacing the ‘‘Laws on the Territorial Sea’’ in February 1992, July 1996, and August 1996, respectively, establishing the breadth of their territorial seas up to 12 miles and of their contiguous zones up to 24 miles, measured from the baselines. 2.2.2. The EEZ Background of the establishment of the EEZ. Since the entry into force of the UN Convention in November 1994, Japan has carefully considered ending the restricted application of the EFZ or extending the EEZ for a number of reasons. First, Japan needed to establish the EEZ in response to the international trend in the law of the sea and to exercise her sovereign right to exploit marine resources. Second, the rapidly increasing numbers of ROK and PRC fishing vessels have threatened small-scale Japanese coastal fisheries off Hokkaido, a major Japanese fishing ground in the East China Sea. Fishery disputes in these areas have become a serious issue, and Japan has needed to consider limiting the access of the ROK and PRC fishermen. Third, Japanese catches in ROK waters have decreased while ROK catches in Japanese waters have increased. Fourth, Japanese waters beyond the 12-mile territorial sea remain high seas for both the ROK and the PRC, leading to overexploitation of fishery resources, as the EEZ regime is not applied to them. For these reasons, Japan promulgated a law establishing an EEZ in June 1996. To retaliate against the unilateral establishment of an EEZ by Japan, the ROK and the PRC established their own EEZs. The ROK promulgated its law on the EEZ in August 1996, and the PRC established its EEZ in June 1998. Contents of the law on the EEZ. The UN Convention defines the extent of the EEZ, the method for delimiting it and coastal states’ rights. Every state has the right to establish an EEZ not extending beyond 200-miles from the baselines (Article 57). The delimitation of the EEZ between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law,

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but where there is an agreement in force between the States concerned, issues relating to the delimitation of the EEZ shall be determined in accordance with the provision of that agreement (Article 74). In the EEZ, the coastal states have sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil (Article 56). In accordance with these provisions, the ROK, PRC, and Japan adopted laws to deal with the EEZ. ROK. The ‘‘Law on the EEZ’’ in the ROK was promulgated in August 1996 and entered into force in September 1996. The Law provides that the EEZ of the ROK shall be the waters up to 200 miles from the baseline from which the territorial sea is measured (Article 2, Para 1). The boundary of the EEZ with opposite or adjacent coastal countries shall be delimited by agreement between countries concerned on the basis of international law (Article 2, Para 2). Reflecting Article 56 of the UN Convention, the Law provides that in the EEZ, the ROK has sovereign rights for exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil (Article 3, Para 1). When foreigners exercise their rights and perform their duties in the EEZ of the ROK, they shall have due regard for the rights and duties of the ROK and shall comply with the laws and regulations adopted by the ROK (Article 4, Para 2). When the competent authorities of the ROK have good reason to believe that the ship has violated the laws and regulations of the ROK, they can take necessary measures, including the pursuit of a foreign ship, ordering it to stop, boarding, searching, arrest, and judicial procedures on the basis of the Article 111 of the UN Convention (Article 5, Para 3). Japan. The ‘‘Law on the EEZ and the Continental Shelf’’ in Japan was promulgated in June 1996 and entered into force in July 1996. The law, in accordance with the provision of the UN Convention providing sovereign rights and other rights to coastal states, establishes the EEZ and the continental shelf, and applies Japanese laws and ordinances to the EEZ and continental shelf (Article 1 and 2). The law states that the EEZ for Japan extends up to 200 miles and that the median line is applied in establishing the EEZ. PRC. The ‘‘Law on the EEZ and the Continental Shelf’’ was promulgated and entered into force in June 1998 to ensure sovereign rights and jurisdiction within the EEZ and the continental shelf, and to protect its marine resources. The law states that the EEZ extends up to 200 miles and that the continental shelf extends to the seabed and subsoil of the natural prolongation of its land territory beyond the territorial sea. This provision

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is based on the PRC’s insistence on the natural prolongation concept of the continental shelf. The law provides that in the case of overlapping boundaries, the boundary line shall be delimited through agreement in accordance with the principle of equity based on international law (Article 2). 2.2.3. Conservation and utilisation of living resources in the EEZ With regard to the conservation and use of living resources in the EEZ, the UN Convention states that proper conservation measures should be ensured and that other states fishing in the EEZ should comply with them. Article 61 of the UN Convention indicates that the coastal state shall determine the total allowable catch (TAC) and ensure through proper conservation and management measures that the maintenance of living resources is not endangered by over-exploitation within the EEZ, taking into account the best scientific evidence available to it. In giving access to other states to its EEZ, the coastal states shall take into account all relevant factors. Nationals of other states fishing in the EEZ shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal states (Article 62). ROK. The ‘‘Law on exercising Sovereign Rights on Foreign Fishing in the EEZ’’ was promulgated in August 1996, and entered into force in August 1997. The objective is, in accordance with the relevant provisions of the UN Convention, to contribute to the appropriate conservation, management and utilisation of marine living resources by providing necessary details on the exercise of sovereign rights over foreign fishing activities (Article 1). The law is applied to foreign fishing activities within the EEZ of the ROK, except in cases where there are agreements with foreign countries, in which case that agreement is applied (Article 3, Para 1 and 2). Therefore, fishery relations between the ROK and Japan, and between the ROK and PRC are regulated through the ROK–Japan Fishery Agreement and the ROK–PRC Fishery Agreement. For the conservation of fishery resources and for fishing adjustment, fishing activities in the ‘‘Special Prohibition Zone’’2 in the EEZ are prohibited. Foreigners wishing to fish in the EEZ need a fishing licence issued by the Ministry of Maritime Affairs and Fisheries (MOMAF) (Article 5). The fishing licence regulates the type of fishing technique, the size of fishing vessels, the number of attached vessels, the type of fishery animals and plants that may be caught, and the expected amount of fishing (Article 3 of the enforcement ordinance). The following criteria need to be fulfilled in order to obtain a licence: the proposed fishing activity should not 2 Three special prohibition zones are established in the East Sea, Yellow Sea, and the Strait of Korea.

undermine the implementation of international conventions or agreements between countries and other relevant matters; the catch should not exceed the amount determined by the Minister of MOMAF on the basis of an ordinance from the MOMAF; and the fishing activity should be compatible with the criteria for permissible fishing for the size of vessels determined by ordinance of the MOMAF. In determining the catch limitation, the ROK shall take into account all comprehensive factors including the trend of fishery resources, the actual catches of ROK fishermen, state of foreign fishing, and the state of ROK fishing on the basis of the TAC (Article 6, Para 2). This relates to Article 62, Para 2 of the UN Convention which states that, in giving access to its EEZ, coastal states should take into account all relevant factors. When receiving a fishing licence (Article 7) and applying for approval to catch and gather fishery animals and plants (Article 9), foreigners should pay fees and are prohibited to transfer or land the catch directly (Article 12). In addition, for the conservation and management of anadromous stocks spawning in inland waters, in accordance with Article 66, Para 1 of the UN Convention, the ROK has the primary interest and responsibility for such stocks (Article 15). The provisions discussed above show that the ROK accepts the general provisions of the UN Convention in its domestic law. Japan. The ‘‘Law on exercising Sovereign Rights on Fishing in the EEZ’’ was enacted in June 1996, and entered into force in July 1996. It was enacted to provide appropriate conservation and management in exercising rights provided in the UN Convention and to take necessary measures to exercise sovereign rights over fishing in the EEZ (Article 1). That is, the law provides for the regulation of catches and the supervision of the fishery within the Japanese EEZ. Therefore, each foreign vessel operating in the Japanese EEZ needs a licence issued by the Ministry of Agriculture, Forestry and Fishery (MAFF). In addition, foreigners are not allowed to fish in specific areas delimited by the ‘‘Law on the Territorial Sea and the Contiguous Zone’’ and areas for the conservation of marine living resources or fishery adjustment (Article 4, para. 1–2). The criteria for a foreign fishing licence are that the fishing activity in the EEZ should not exceed the amount determined by ordinance of the MAFF and should comply with the criteria of other ordinances (Article 6, para 1). In determining the limitation of catch, all comprehensive factors including the status of foreign fishing, and the status of Japanese fishing in foreign waters should be considered, along with the trend of marine living resources and the actual catches by Japanese fishermen (Article 2). The law’s provisions for payment of a fishing fee and a commission, and for fixed fish species fisheries, the management of anadromous stocks, and penalties and guarantees are similar to the ROK law.

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PRC. The PRC has no specific laws like the ‘‘Law on exercising Sovereign Rights on Foreign Fishing in the EEZ’’ or ‘‘Law on exercising Sovereign Rights on Fishing in the EEZ’’ in the ROK and Japan. But the ‘‘Law on the EEZ and Continental Shelf’’ covers the exercise of sovereign rights over fishing in the EEZ. When international organisations or foreign individuals or groups want to conduct fishing activity in the PRC’s EEZ, they need a licence issued from the relevant authority that can take the necessary protection and management measures for preventing the overexploitation of living resources. These measures deal with transboundary and straddling fish species, highly migratory species, marine mammals, catadromous and anadromous species. In particular, the authority has jurisdiction over catadromous species (Article 6). The authority can conduct necessary measures to prevent, reduce, or control marine pollution for the conservation and the preservation of the marine environment (Article 10). In excising sovereign rights over the exploitation, development, conservation and management of marine living resources, the PRC can take necessary measures to stop, board, search, arrest, provide judicial enforcement and pursuit in order to ensure the observance of the PRC’s laws and regulations. 2.3. Problems of delimitation of the EEZs The ROK, PRC, and Japan had already declared 200mile EEZs in 1996, but they have yet to reach a compromise on their delimitation. Compromise is difficult mainly for the following reasons. First, delimitation problems in the region are especially difficult because they simultaneously involve boundaries with both adjacent and opposite states. Claims to the full 200-mile EEZ will create overlaps, and may lead to disputes. This is because the region has semi-enclosed seas less than 400 miles wide. Second, there are very difficult territorial disputes to be resolved over offshore uninhabited islands in the East China Sea (Tiaoyutai/Senkaku between PRC and Japan, Northern Territories/Southern Kuriles between Japan and Russia) and in the East Sea (Dok-do/ Takeshima between the ROK and Japan) [5–7]. It is estimated that the state that gains the islands would secure enormous jurisdictional rights over the surrounding seas by establishing the EEZ. In the case of Tiaoyutai/Senkaku, the area would measure 20,500 square miles. In the case of the Northern Territories/ Southern Kuriles, it would be 57,000 square miles, and 18,545 square miles in the case of Dok-do/Takeshima [8]. Unless the territorial disputes are resolved one way or another, which is extremely unlikely, the boundaries may not be delimited. Third, the Yellow/East China Sea has been the focus of continental shelf boundary disputes since 1969. The

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essential cause of the disputes stems from the differences between the parties concerned as to the principle of international law to be employed in delimitation, as well as the geophysical nature of the seabed at issue. For instance, The ROK adheres to the median line in the continental shelf of the Yellow Sea and part of the East China Sea, but relies on the doctrine of natural prolongation in the north-eastern part of the East China Sea because it extends beyond 200 miles from the baseline of its territorial sea [9]. On the other hand, in the Yellow/the East China Sea, the PRC adheres to the doctrine of natural prolongation. Its claim is derived from the overlay of sediments in the seabed of the Yellow Sea [10] and the proportionality of the lengths of the coastline [11]. The PRC claims that its continental shelf extends beyond the median line drawn by the ROK in the East China Sea up to subzone 7 of the ROK’s continental shelf. Another example is the Okinawa Trough, which allegedly terminates the natural prolongation of the Japanese territory. In this case, it should constitute a natural boundary between Japan, on the one hand, and PRC and ROK on the other. However, Japan has denied this character of the Okinawa Trough, and insisted on the application of the equidistance principle. Next, the East China Sea is overlapped by three unilateral proclamations of sovereign rights over the continental shelf. In the area, as many as 17 sea-bed oil zones have been established by the ROK, PRC and Japan, with 13 of them overlapping partly or substantially with one another [12]. Therefore, the introduction of EEZs, defined solely by the distance of 200-mile and that cover the seabed as well as the superjacent water, might affect the nature of the continental shelf boundary dispute in this region rather substantially. Finally, the UN Convention provides that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast (Article 5). However, in localities where the coastline is deeply indented, or where there is a fringe of islands close to the coast, the method of drawing straight baselines by joining appropriate points may be employed (Article 7). In accordance with this provision, as shown in Table 1, the ROK established a straight baseline in April 1978, the PRC in May 1996, and Japan in January 1997. However, each state has attempted to draw straight baselines in order to extend its jurisdictional waters depending on the geographical circumstance and is reluctant to agree on concepts that could be used to its disadvantage. There are a number of locations around the East China/Yellow Sea where straight baselines could be drawn in accordance with the Article 5 of the UN Convention. For example, the west and south coasts of the Korean peninsula have wide-mouthed deep estuaries flanked by peninsulas and fringed with islands. The PRC’s coast south of Hangzhau Bay is fringed with

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numerous islands. Japan has many islands where sets of archipelagic baselines can be drawn, including Danjo Gunto, Okinawa and Amami Gunto [13].

3. The fishery relationship between the ROK, Japan and the PRC The fishery regime in the seas surrounding Korea has long been dominated by two bilateral agreements, the 1965 ROK–Japan Fishery Agreement and the 1975 Japan–PRC Fishery Agreement. These agreements were based on ‘the principle of freedom of the high seas’ beyond the 12-mile territorial seas. However, since the late 1980s, a number of problems have provoked a serious reconsideration of the structure of the existing fishing regimes. Firstly, the two agreements only regulated fishing activity in the waters around the ROK and PRC but did not regulate the waters around Japan. When the two agreements were concluded between the ROK and Japan, and Japan and the PRC, the fishing capability of the ROK and PRC was low, and it was not necessary to regulate their fishing activities around Japan. However, their fishing capability has developed rapidly and the number of fishing vessels has increased, and fishery disputes in the waters around Japan have become a serious issue. For example, the ROK’s fishing activity around western Hokkaido (Japan) and the PRC’s fishing activity around the southern part of Kyusu (Japan) have caused serious disputes with Japanese fishermen. Secondly, there had not been any fishery agreements between the ROK and PRC for a long time because of the absence of diplomatic relations. Nevertheless, there were no serious disputes between the two countries. One reason was that the ROK and PRC did not have the fishing capability to extend their fishing activity to the waters around another country. Another is that during the Cold War, each country was reluctant to fish around another country’s fishing ground because they were concerned that fishery disputes could arise from ideological antagonism. However, paradoxically, the establishment of diplomatic relations between the two countries in 1992 and the rapid development of fishing activity have brought about serious fishery disputes and overexploitation of fishery resources through excessive competition. With this complicated situation, the entry into force of the UN Convention in November 1994 stimulated fishery negotiations in order for a fishery agreement to enter into force, and to solve pending problems in the region. Taking into account the complicated situation facing the region, the ROK, Japan, and the PRC have agreed to deal with the fishery issue separately from the resolution of the EEZ delimitation issue. This is because, as discussed in the previous section, the delimitation of

the EEZ in the region requires time to reach compromise and agreement among the coastal states. Given the seriously declining fishery resources in the region, it does not make sense to wait until the delimitation problem is resolved. All three fishery agreements, that is, ROK– Japan, ROK–PRC, and Japan–PRC, stipulate that the agreement should not be regarded as undermining the contracting parties’ position on international issues other than the fishery issue3. These provisions are based on Article 74 of the UN Convention which states that, ‘‘The delimitation of the EEZ between States with opposite or adjacent coasts shall be effected by agreementy.’’ It provides further that, ‘‘Pending agreementy., the States concerned, in a sprit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardise or hamper the reaching of the final agreement. Such arrangement shall be without prejudice to the final delimitation.’’ As a transitional provision until such time as the EEZs are delimited, the ROK, Japan and the PRC agreed in the respective fishery agreements that specified waters would be deemed to be part of their EEZs and waters in the middle zone would be jointly managed by neighbouring coastal countries for the conservation and management of fishery resources. 3.1. ROK–Japan fishery relationship 3.1.1. 1965 ROK–Japan Fishery Agreement After thirteen years of negotiations, the ROK and Japan finally concluded a government-level fisheries agreement in 1965 when the normalisation of diplomatic relations between two countries was established. The main content of the 1965 ROK–Japan Fishery Agreement focuses on three points. First, the right to establish an EFZ up to 12 miles from the baseline (Article 1). Within 12 miles from the baseline, the parties can exercise exclusive jurisdiction over fisheries and the operation of the other party’s fishing vessels is excluded. Second, the flag state principle is applied with the flag state exercising enforcement and court jurisdiction over its own fishing vessels outside the 12 mile fishery zones. Third, beyond the 12 mile point from the ROK, ‘‘Joint Regulation Zones’’ were established (Articles 2 and 3) in which the two governments would take provisional measures limiting the number and size of fishing boats. In these zones, until the conservation levels necessary for the maintenance of the maximum sustainable productivity of fishing resources are decided on the basis of scientific surveys, provisional fisheries regulations will be implemented. Fourth, outside the Joint Regulation 3

Article 15 of 1999 ROK–Japan Fishery Agreement, Article 14 of ROK–PRC Fishery Agreement, and Article 12 of 1997 Japan–PRC Fishery Agreement.

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Zones, ‘‘Resource Survey Zones’’ were established (Article 4) in which the two governments would conduct scientific surveys to assess the condition of fishery resources in the area. However, the 1965 ROK–Japan Agreement began with a marked imbalance because it aimed to regulate Japanese fishing vessels in ROK waters but not in Japanese waters. The agreement was established as a result of ROK efforts to bar Japanese intensive and extended fishing activity from its waters and of Japanese efforts to maintain or extend its fishing activity in ROK waters. Initially, Japanese fishing operations caused trouble for ROK fishermen in ROK waters. However, the rapid expansion of the ROK’s offshore and distantwater fisheries affected the stability of the post-1965 bilateral fisheries regime. As a result of the ROK’s unprecedented expansion since the mid-1970s, ROK fishing in Japanese coastal waters outside the Joint Regulation Zones increased dramatically and caused a number of incidents similar to those caused by Japanese fishing. In 1980, the ROK and Japan concluded the Agreement on Voluntary Fishing Regulation, a selfregulatory scheme for the fishermen of either country operating in the other’s coastal waters beyond the Joint Regulatory Zone. The scheme covered the Japanese trawl and purse seine fisheries operating along the ROK coast, particularly south and west of Cheju Island (ROK), and ROK trawl, squid jigging, and pot fishing along the Japanese coast, particularly around western Hokkaido (Japan). While trouble continued, the ROK and Japan agreed to extend the provisional arrangement and also to further strengthen the regulatory measures in the relevant waters. In particular, the two sides agreed in October 1987 that the ROK’s trawl fisheries inside the otter trawl prohibition line would be gradually phased out by April 1991. In return, Japanese trawlers operating around Cheju Island (ROK) would be reduced by 50 per cent and the fishing season for the remaining boats would be cut by 50 percent by April 1991 [14]. 3.1.2. 1999 the ROK–Japan fishery agreement In order to overcome pending fishery problems between the ROK and Japan and to adopt an EEZ regime based on the provisions of the UN Convention that allow coastal states to exercise their rights to exploit fisheries resources, seven working level meetings to revise the 1965 ROK–Japan Fishery Agreement were held between May 1996 and January 1998. However, the two countries failed to reach a compromise due to important differences in views. As a result, in January 1998 Japan unilaterally notified the ROK that the 1965 Fishery Agreement would be cancelled, based on the provision of the Agreement that allows for the termination of the agreement one year after either party gives

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notice (Article 10). This notification precipitated further fisheries negotiations between the two countries because the two sides were concerned about the potential lack of regulation and related disputes in the fishing sector. As a result, a new fishery agreement was concluded in November 1998 and entered into force in January 1999. The 1999 Fishery Agreement is based on the 1982 UN Convention, and domestic law, including the ‘‘Law on the EEZ’’, and the ‘‘Law on exercising sovereignty concerning foreigners fishing in the EEZ’’ discussed in the previous section. The Preamble of the Agreement outlines the general principles and states that the objectives are to seek the conservation, management and optimum utilisation of marine living resources, to establish a new fishery order, and to develop fishery cooperation on the basis of the UN Convention. The contracting waters are the EEZs of the ROK and Japan (Article 1), which are classified into three categories of waters: EEZs, Middle Waters, and other waters, as illustrated in Fig. 1. First, the EEZ waters extend 35 miles from the baseline. In these waters, coastal states have exclusive rights over the exploitation, conservation and utilisation of marine living resources. Each contracting party decides on an annual basis the conditions under which the other party’s fishermen and fishing vessels are allowed to fish. These conditions include the fish species, the catch allocation, and the fishing area. Each party must provide written notification of these conditions to the other. To decide on the fishing conditions, each contracting party must respect the results of consultations by the ROK–Japan Joint Fishery Committee (JFC) and consider the status of the marine living resources, fishing capacity, and the reciprocal fishing situation in the EEZ (Article 3). Foreign fishing vessels need a fishing licence issued by the coastal country to fish in the EEZ and must obey the coastal state’s relevant laws or regulations on marine living resources (Articles 4 and 5). When fishing vessels or crews are seized or detained on charges of violating the relevant laws or regulations, they should be released rapidly after paying a security or submitting a guarantee. Second, the concept of ‘‘Middle Waters’’ was adopted to deal with those areas where the EEZ is not delimited, and covers the waters around the assumed EEZ boundary. There are two Middle Waters in the agreement; the Middle Waters in the East Sea; and the Middle Waters in the East China Sea (Article 9). In these waters, no country can apply its laws or regulations over another country’s fishing vessels and fishermen (Article 9 and Annex I). That is, enforcement and jurisdiction is conducted only by the flag state. In accordance with a recommendation (Middle Waters of East Sea) or a decision (Middle Waters of the East China Sea) of the ROK–Japan JFC, each contracting party will take necessary measures,including those

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Fig. 1. Fishery Agreements between the ROK, Japan and PRC.

required for the conservation of marine living resources and the maximum number of fishing vessels for each type of fishing. Each contracting party should inform the other of on-going measures applied to its fishermen and the amount of catches for each type of fishing and fish species by its fishermen. If one contracting party detects a violation by the other, it informs the other party’s authority of this and provides related details. The other party investigates the allegation, undertakes any necessary measures, and informs the original party of the result of the measures (Annex I). Thirdly, the north-west waters (Area of Fig. 1) of the Middle Waters of the East Sea are not included in the Middle Waters, but the EEZs of the ROK, DPRK, Japan and Russia may overlap. In these waters, it is difficult to distinguish the boundary of the EEZ. Therefore, in view of the complicated and uncertain

situation, the ROK and Japan agreed that one contracting party’s laws or regulations will not be applied to the other party’s fishermen and fishing vessels. These waters are similar to Middle Waters in terms of management of marine living resources but the waters are different from Middle Waters in that the JFC can not decide but only recommend on the conservation measures to be applied in the waters (Annex II). To implement the agreement effectively, the ROK and Japan agreed to the establishment of the ROK–Japan JFC. It consists of one representative and one commissioner from each country. A sub-body composed of experts can also be established. The JFC’s functions are divided into recommendations and decisions. Recommendations cover: fishing licences; the maintenance of fishing order; the status of marine living resources; fishery co-operation; and conservation and management

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Table 2 Comparison of the 1962 and 1999 Fishery Agreements 1965 Agreement

1999 Agreement

Size of the EEZ

12 miles from the coastal line

35 miles from coastal line

Enforcement and jurisdiction

Flag state principle

Coastal state principle (Middle Waters: flag state principle)

Fishing limitations

*

*

*

Free fishing outside the 12 mile limit Establishment of jointly controlled waters around the ROK (regulating catches and the number of fishing vessels).

*

Fishing by quota allocation in the EEZ Management and conservation of fishery resources in Middle Waters (based on recommendations and decision of the JFC)

Table 3 Cases of illegal fishing in each other’s waters

Illegal fishing by PRC vessels in ROK waters (cases of seizure) Illegal fishing by ROK vessels in PRC waters

1992

1993

1994

1995

1996

1997

1998

526 (15) 0

1302 (17) 0

2703 (17) 8

7375 (45) 1

4165 (45) 4

1691 (39) 2

1591 (31) 0

Source: Ministry of Maritime Affairs and Fisheries of the ROK.

of marine living resources in the Middle Waters of the East Sea. Decisions cover the conservation and management of marine living resources in the Middle Water of the East China Sea. The reason that the conservation and management of marine living resources in the Middle Waters of the East Sea may be classified as a recommendation matter is that Dok-do, a territory under dispute by the ROK and Japan, is enclosed in the Middle Waters (see Fig. 1). Finally, the boundary line that connects the Middle Waters of the East Sea with those of the East China Sea is delimited in accordance with the ‘‘ROK–Japan Agreement on the Central Continental Shelf Boundary’’ that entered into force in 1978. Based on the boundary agreement, waters on the ROK side reverted to the ROK EEZ, while waters on the Japanese side reverted to Japan’s EEZ. Each country exercises exclusive rights in their EEZ. Table 2 shows a comparison of the 1965 and 1999 Fishery Agreements. In the 1999 Agreement, the size of the EEZ is extended from 12 miles to 35 miles, and the right of enforcement and court jurisdiction moved from the flag state to the coastal state, except for Middle Waters. While in accordance with ‘the principle of freedom of fishing’, the 1965 Agreement allowed for fishing freely outside the 12 mile limit, the 1999 Agreement allows contracting parties to exercise exclusively their rights to the exploitation, conservation and utilisation of fishery resources. In particular, the ROK and Japan agreed that, taking into account traditional fishing activity and the abrupt changes caused by the newly established 1999 Agreement, within the EEZ, the catch gap between the two countries will be reduced gradually. By the end of the

first three years following the Agreement’s entry into force, catch levels for the two countries should be equal, except for pollack and large crab. 3.2. ROK–PRC fishery relationship 3.2.1. Historical background Although diplomatic relations between the ROK and PRC were established in August 1992, there was no fishery agreement between the ROK and PRC until 1998. While ROK fishermen have not fished heavily in PRC waters, PRC fishermen have expanded their fishing activities in ROK waters, and they target the same fish as ROK fishermen: cheb and jack mackerel, hairtail, anchovy, Japanese flying squid, pilchard, gazami, crab, Japanese spanish mackerel, and yellow croaker, etc. As a result of expanded PRC fishing activities, illegal fishing activity by PRC fishing vessels has increased off the ROK coast. Table 3 shows the number of cases of illegal fishing by PRC and ROK fishing vessels in each other’s waters. While there were only a few cases of ROK fishing vessels operating illegally in PRC waters, the number of PRC vessels fishing illegally in ROK waters, including the ROK territorial sea and waters in which fish stocks were protected, has increased from 526 cases in 1992 to 1591 in 1998. The extension of PRC fishing activity to the ROK coast has resulted in many problems including the depletion of fish stocks, marine pollution, and accidents at sea. However, since the ROK did not have a fishery agreement with the PRC and neither country claimed a unilateral fishery jurisdiction zone, each country was technically free to fish. Therefore, it was difficult to regulate illegal fishing activities in areas of the Yellow

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Sea and the East China Sea beyond the limit of their territorial seas. The ROK proposed fishery talks to solve the problems and as a result, a first inter-governmental meeting was held in December 1993 to deal with the establishment of a fishery agreement, and with issues relating to illegal fishing by the PRC and the maintenance of fishing order. The ROK and PRC held fishery working-level talks nineteen times from that point onward. In these negotiations, while the PRC tried to extend the joint fishing zone in order to maintain and protect PRC vessels fishing in ROK waters, the ROK tried to reduce the joint fishing zone to prevent PRC fishing activity in ROK waters. Finally, the two sides concluded their five-year negotiations and signed an agreement on 11 November 1998 with the adoption of the concept of Transitional Waters that reflects the PRC position to some extent. The agreement entered into force on 30 June 2001. 3.2.2. 1998 ROK–PRC fishery agreement The main objectives of the Agreement are to seek the conservation and desirable utilisation of marine living resources; to maintain normal fishing order at sea; and to strengthen and promote mutual co-operation in the fishery sector (Preamble). The contracting waters are the EEZs of the ROK and PRC (Article 1), and are classified into four types of waters: EEZs, Transitional Waters, Provisional Waters, and waters for maintaining current fishing activity, as illustrated in Fig. 1. For each contracting party, exclusive jurisdiction over fisheries can be exercised and the operation of the other party’s fishing vessels is excluded within around 50–60 miles from the baseline. In these waters, coastal states have exclusive rights for the exploitation, conservation and utilisation of marine living resources. Like the ROK–Japan Fishery Agreement, each party makes, on an annual basis, a detailed decision on conditions allowing the other party’s fishermen and fishing vessels to operate in its waters, taking into account the results of consultations with the JFC and the status of the marine living resources, fishing capacity, traditional fishing activity, and the reciprocal fishing situation in the EEZ (Article 3). These conditions include the fish species, the amount of catch allocation, and the fishing area. The decision is notified in writing. Foreign fishing vessels need a fishing licence issued from the coastal country to fish in the EEZ and must obey the relevant laws or regulations on marine living resource of the coastal state (Article 4 and 5). Seized or detained fishing vessels or crews should be released rapidly after paying a security or a guarantee. Transitional Waters are located between the EEZ and Provisional Waters and are around 20-30 miles wide. Transitional Waters are similar to provisional waters in that both countries’ fishing vessels conduct fishing activities there, the governments jointly manage the

fishery resources, and the flag principle is applied (Article 8). However, four years after the entry into force of the agreement, the Transitional Waters will revert to the coastal country’s jurisdiction. Before that time, in those waters, both countries can incrementally control or reduce fishing activities so that the fishing activities of both countries are maintained in balance. Both governments can conserve and manage marine living resources based on the decision made by the ROK–PRC JFC. In order to identify whether the fishing conditions decided by the Committee are obeyed, joint monitoring or supervision is conducted. To be effective, a list of fishing vessels is exchanged. Provisional Waters cover the overlapping areas caused by the establishment of 200-mile EEZs by the ROK and the PRC. In this area, both countries’ fishing vessels conduct fishing activities and both governments jointly manage fishery resources. The governments jointly determine management conditions, including catch volumes and the number of fishing vessels in order to conserve marine living resources. The details are decided by the ROK–PRC JFC (Article 7). The flag state principle is applied to this area, with each country controlling its own fishing vessels and having no right to control the other party’s fishing vessels. If one party detects that the other party’s fishing vessels are violating regulations decided by the JFC, the flag state is informed of the nature of the violation. The flag state must take necessary measures and inform the other party of the results of the measures. Finally, in the waters (Area of Fig. 1) around the PRC’s Yangtze River (latitude 371 North) and south (Area of Fig. 1) of ROK’s Cheju Island (latitude 311 500 South), ROK and PRC fishing vessels can freely conduct fishing activity as they did in the past (Article 9). In other words, ROK fishing vessels can conduct fishing activity around the Yangtze River in the PRC’s EEZ, and PRC fishing vessels can operate in the area south of Cheju Island in the ROK’s EEZ. However, PRC fishing vessels must obey conservation measures in fishing regulation zones such as the special prohibition zones and special waters established in the northern part of the Yellow Sea by the ROK’s domestic law. In return, ROK fishing vessels have to obey conservation measures in the fishing suspension zone and in the fishery resource conservation zone along the PRC’s Yangtze coast. To implement the agreement effectively, the ROK– PRC JFC is established. The Committee consists of one representative and several commissioners from each country and, if necessary, a sub-committee of experts can be established. The Committee makes recommendations on the following: the species that it is possible to fish, the amount of quota allocation and other detailed fishing conditions for allowing the operation of another party’s fishermen and fishing vessels; matters related to

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maintaining a fishing area; matters related to the state and conservation of marine living resources; and matters related to fishery co-operation between the two countries (Article 13). The Committee discusses and decides the issues on joint conservation measures for fishery resources in Transitional Waters and Provisional Waters. 3.3. The Japan–PRC fishery relationship 3.3.1. 1975 Japan–PRC fishery agreement The Japan–PRC fishing relationship started with a non-governmental agreement in 1955 between the Fishery Association of Japan and its PRC counterpart, the Fishery Association of the PRC. They agreed that the fishermen of both countries should comply with the PRC fishery regulations set forth in 1950 and amended in 1955 to protect the coastal fishery resources of the East China Sea and Yellow Sea from motorised trawl fishing. A Military Warning Zone in the northern part of the Yellow Sea was also delineated. A second nongovernmental agreement was concluded between the fishery associations in 1963, and in 1970 they further agreed to regulate motorised purse seine fishing with fish-attracting lights in the East China Sea. Based on the non-governmental agreements, Japan and the PRC established a formal governmental fishery agreement in 1975 that extended the succession of nongovernmental fishery agreements. The objective of the agreement was to regulate Japanese fishing in PRC waters. The 1975 governmental agreement was revised in 1979 and 1985. Through these revisions, the 1975 Agreement led to a complex set of regulations: the establishment of a horsepower restriction line inside which trawlers and purse seiners of 660 horsepower or more are prohibited; closed areas or suspension areas which are completely closed during designated periods; conservation areas or protected areas where the number of boats is restricted during designated periods; and fishing restrictions regarding minimum body length, minimum mesh size, light intensity fish-attracting devices, incidental catch limits, and others [14, pp. 257–258]. In the 1985 agreement, all of the closed areas and trawl conservation areas designated in earlier agreements have been retained and several new areas have been added. 3.3.2. 1997 Japan–PRC Fishery Agreement Japan and the PRC concluded a new fishery agreement reflecting the intent of the UN Convention in November 1997, and it entered into force on 27 February 2000. The objective of the agreement is to establish a new fishing order in accordance with the UN Convention; to conserve and rationally utilise marine living resources; and to maintain a proper fishing order (Preamble). The contracting waters are the EEZs of the

121

PRC and Japan (Article 1). These are classified into three types of waters: EEZs, Provisional Waters, and waters for maintaining current fishing activity, as illustrated in Fig. 1. First, the EEZ waters extend to 52 miles from the baseline. In these waters, as with the ROK–Japan and ROK–PRC Agreements, coastal states have exclusive rights over the exploitation, conservation and utilisation of marine living resources. Considering the status of fishery resources, its fishing capacity, traditional fishing activities and the reciprocal fishing situation, and other relevant matters in the EEZ, each contracting party decides annually on the fish species, amount of catch allocation, fishing area, and other fishing conditions under which it will allow the other party’s fishermen and fishing vessels to operate. In deciding these fishing conditions, each contracting party respects the result of consultations with the PRC–Japan JFC (Article 3). Each contracting party can take necessary measures in accordance with international law to ensure that the other party’s fishermen and fishing vessels obey conservation measures for marine living resources and other conditions provided in its relevant laws and ordinances (Article 5). Each contracting party’s fishing vessels need a fishing licence issued by the other coastal country to fish in its EEZ (Annex I). In the case of seizure or detention, as with the ROK–Japan Fishery Agreement, the fishing vessel and crew must be released rapidly after paying a security or submitting a guarantee. Second, in the waters where it is difficult to distinguish each party’s EEZ boundary, Provisional Waters are established (Para 1, Article 7). Each contracting party has to take appropriate conservation measures and quantitative management measures to ensure that the maintenance of marine living resources is not threatened by over-exploitation, in accordance with the decision of the Japan–PRC JFC and taking into consideration the effect on traditional fishing activities conducted by each contracting party in the Provisional Waters (Para 2, Article 7). In these waters, neither country can apply its laws or regulations to the other country’s fishing vessels and fishermen. When one contracting party detects a violation by the other party’s fishing vessels or fishermen, it can notify the other party of the violation and related details. The other party investigates the fact, takes any necessary measures and informs the other party of the results of these measures (Para 3, Article 7). Third, the waters south of latitude 271 North (Area of Fig. 1) and west of latitude 1251 300 east (Area of Fig. 1) in the East China Sea, are not included in the Provisional Waters. However, the relevant laws and regulations of one country are not applied to the other country’s fishermen and fishing vessels (Article 6(b)). Therefore, Japanese and PRC fishing vessels can freely conduct fishing activity as they did in the past.

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To achieve the objectives of the agreement, the Japan–PRC JFC is established. It consists of two representatives appointed by each contracting party (Para 1, Article 11). The Committee recommends the following: fish species, amount of catch allocation, fishing area, and other conditions to allow the other party’s fishermen and fishing vessels to fish under Article 3; the maintenance of fishing order; the status and conservation of marine living resources; and fishery co-operation. The Committee discusses and determines the conservation and management of marine living resources in the Provisional Waters based on Article 7.

3.4. Comparison of fishery agreements between the ROK, Japan and the PRC 3.4.1. Comparison of the fishery agreements Table 4 outlines the fishery relationship between the ROK, Japan and the PRC. A common feature of the three fishery agreements is that the contracting waters cover the estimated EEZs of the three countries provisionally until such time as the EEZs in the region are delimited. The agreements have something in common in that the objectives are to maintain fishing order, to promote fishery co-operation and to seek the conservation and desirable utilisation of marine living resources in accordance with the UN Convention which entered into force in November 1994. In addition, the coastal state principle in the EEZ is adopted and reciprocal fishing activity is allowed in the other party’s EEZ. On the other hand, there are differences in the size of the EEZs, in dispute resolution, in the effective period of the agreements, and in the establishment of the JFC. The ROK–Japan Fishery Agreement provides that the breadth of each country’s EEZ extends 35 miles but the ROK–PRC Agreement has no special provision regarding the breadth of the EEZ. In the overlapping waters between neighbouring countries which arise when the EEZs in the region are not delimited, special waters such as Middle Waters, Provisional Waters, and Transitional Waters are established. However, the Transitional Waters which are adopted in the ROK–PRC Agreement are not established in the ROK–Japan and Japan–PRC Agreements. In addition, while the ROK’s traditional fishing records in Japanese waters are considered in the ROK–Japan Agreement, the PRC’s fishing records in the ROK’s waters are not considered in the ROK–PRC Agreement. The JFC of the ROK–PRC can decide conservation measures for fishery resources in the ROK–PRC Agreement but that of the ROK–Japan Agreement can only make recommendations on the management of the Middle Waters of the East Sea.

3.4.2. Problems of the fishery agreements There is close fishery relationship between the ROK, PRC and Japan, as coastal countries in the seas surrounding Korea. Table 5 shows estimated catches in 1995 by the three countries in the EEZs and illustrates their interdependence in the fishing sector. In spite of the close interdependence between three countries in fisheries, there are a number of problems in the three agreements that should be considered. First, the right to regulate a third party’s fishermen and fishing vessels exists in none of the three agreements, as they are all bi-lateral agreements regulating two contracting parties. For example, the ROK would not accept the Provisional Waters of the East China Sea allowing Japan and the PRC to manage jointly marine living resources in the Japan–PRC Agreement, and continues to fish in the Provisional Waters of the Japan–PRC Agreement. As shown in Fig. 1 (Area ), this is because the Middle Waters of the ROK-Japan Agreement overlap with the Provisional Waters of the Japan-PRC Agreement, while there are no agreements between the ROK and PRC in those waters. The PRC also insists that its fishing vessels can fish in the Middle Waters of the East China Sea in the ROK–Japan Agreement. Secondly, there are no agreements to regulate or manage the waters that are overlapped by more than the three countries. The north-west waters (Area of Fig. 1) of the Middle Waters of the East Sea in the ROK–Japan Fishery Agreement are overlapped by the ROK, DPRK, Japan and Russia and some parts of the East China Sea are overlapped by the ROK, Japan and the PRC. Thirdly, from a biological point of view, almost all fish stocks in the region are thought to migrate beyond the territory of any one country. Even though one or two countries can not effectively manage and conserve these fish stocks, none of the three agreements considers biological characteristics, but rather focuses on the economic and political interests of the parties concerned.

4. Conclusion As contracting parties to the UN Convention, the ROK, PRC, and Japan have endeavoured to accept the UN Convention domestically as well as to develop their fishery relations with neighbouring countries. They have taken follow-up measures in compliance with the UN Convention by adopting domestic laws such as the ‘‘Law on the territorial sea and contiguous zone’’, the ‘‘Law on the EEZ’’ and the ‘‘Law on exercising sovereign rights over foreigners in the EEZ’’. Even though there is a certain degree of difference among the ROK, PRC and Japan, their domestic measures to comply with the UN Convention are faithful reflections

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Table 4 Comparison of fishery agreements among the ROK, Japan and the PRC ROK–Japan Agreement

ROK–PRC Agreement

Japan–PRC Agreement

1. Signing (Effectuation)

18 November 1998 (22 January 1999)

11 November 1998 (30 June 2001)

11 November 1997 (27 February 2000)

2. Objective

*

Same as ROK–Japan Agreement

Same as ROK–Japan Agreement

* *

Establish fishing order Fishery co-operation Conservation and desirable utilisation of marine living resource

3. Contracting waters (EEZ)

EEZs of the ROK and Japan

EEZs of the ROK and PRC

EEZs of Japan and the PRC

*

*

Same as ROK–Japan Agreement

*

Factors in deciding fishing conditions

*

Country of the EEZ: fish species, catch allocation, fishing area JFC consultation

*

Country of the EEZ: stock status, fishing capacity, reciprocal fishing situation JFC consultation

*

Conservation measures of fishery resources

Conservation measures of marine living resources provided by the coastal country’s relevant laws or regulations

Same as ROK–Japan Agreement

Agreement and conservation measures of marine living resources provided by its own relevant laws or regulations

*

Guidance and enforcement

Seizure and detention in case of violation of the fishing condition and international law

Seizure and detention, navigation, instruction of fishing safety and fishing order

Same as ROK–Japan Agreement

*

Penalty

Release after security is paid or guarantee letter is submitted

Release after security is paid or mortgage is given

Release after security or other warrant is paid

*

Jurisdiction

Coastal state principle

Coastal state principle

Coastal state principle

4. Special waters

Middle Waters

Provisional Waters Transitional Waters

Provisional Waters

*

Jurisdiction

Flag state principle

Flag state principle

Flag state principle

*

Conservation measures of fishery resources

*

JFC recommendation: Middle Waters of the East Sea JFC decision: Middle Waters of the East China Sea

*

JFC decision Transitional Waters are reverted to coastal country’s territory after 4 years after entry into force

*

JFC decision

One representative, one commissioner, sub-body Recommendation or decision on fishing conditions, fishing order, status and conservation of fishery resources, and fishery co-operation

*

One representative, several commissioners, subcommittee of experts Function: same as ROK– Japan Agreement

*

Two representatives Recommendation or decision: fishing conditions for other party, fishing order, status and conservation of fishery resources, and fishery cooperation

*

5. JFC Composition Function

*

*

*

*

*

6. Dispute resolution

Mediation by consultation or agreement

None

None

7. Effective period

Valid for 3 years; ends 6 months after notification

Valid for 5 years; ends 6 months after notification

Valid for 5 years; ends 1 year after notification

of Article 300 of the UN Convention which states that ‘‘parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognised in the Convention in a manner which would not constitute an abuse of right’’. These measures must be a good basis on which to

provide rational management instruments for the conservation and management of fisheries resources in the region. In particular, laws and regulations prepared almost at the same time by the ROK and Japan use similar legal instruments and reflect well the sprit of the UN Convention.

J.-S. Kang / Marine Policy 27 (2003) 111–124

124 Table 5 Estimated catches in the EEZ in 1995

References

(Unit: thousand tonnes) Areas ROK

Japan

PRC

Total

ROK’s EEZ Japan’s EEZ PRC’s EEZ

149 2466 200

300 — 2860

1654 2714 3128

[1] Paik JH. Prospects for the EEZ in Northeast Asia: opportunities and problems. In: Kim DJ et al., editors. Exploring Maritime Cooperation in Northeast Asia. Seoul: Younsei University, 1993. p. 100–1. [2] Fukui H. How Japan handled UNCLOS issues. In: Frideheim et al., editors. Japan and New Ocean Regime, 1984. p. 49. [3] Park CH. East Asia and The Law of the Sea. Seoul: Seoul National University Press, 1983. p. 57–62. [4] Paik JH. East Asia and The Law of the Sea. Seoul: Seoul National University Press, 1983. p. 99–100. [5] Jain RK. China and Japan 1949–1980, London, 1981. p. 122–131 [6] Okuhara T. The territorial sovereignty over the Senkaku Islands and problems on the surrounding continental shelf. Japanese Annual of International Law 1971;15:97–106. [7] Taijudo K. The Dispute between Japan and Korea respecting sovereignty over Takeshima. Japanese Annual of International Law 1968;12:1–17. [8] Morgan J, Valencia MJ. Atlas for marine policy in East Asian Seas. Oxford: University of California Press, 1992. p. 29–33. [9] Chee CI. Korea and International Law, International Legal Studies Series, vol. 4. Seoul: Korea University, 1993. p. 10–4. [10] Hsu RS. Rational approach to maritime delimitation. Ocean Development and International Law Journal, 1983;13(1):110. [11] Yuan PC. The New Convention on the Law of the Sea from the Chinese Perspective. In: Consensus and Confrontation: The United States and the Law of the Sea Convention. The Law of the Sea Institute, Honolulu, 1985. p. 203. [12] Park CH. The People’s Republic of China and The Law of the Sea. The International Conference on the East Asia and the Law of the Sea, Seoul, July 1984. p. 13. [13] Morgan J, Valencia MJ. The People’s Republic of China and the Law of the Sea. The International Conference on the East Asia and the Law of the Sea, Seoul, July 1984. p. 25. [14] Valencia MJ. The Sea of Japan: Transnational Ocean Resource Management Issues and Options for Co-operation. East–west Environment and Policy Institute, USA 1988. p. 179.

1205 248 68

Source: Ministry of Maritime Affairs and Fisheries of the ROK.

With regard to fishery relations in the region, taking into account the current difficulty among coastal countries of delimiting EEZs and seriously declining fishery resources, the ROK, the PRC, and Japan agreed to deal with the fishery issue apart from the issue of EEZ delimitation. As a result, the 1965 the ROK and Japan Fishery Agreement and the 1975 Japan–PRC Fishery Agreement were basically revised and entered into force in January 1999 and February 2000 respectively, and the ROK–PRC Fishery Agreement was newly established and entered into force June 2001 to reflect the UN Convention and resolve pending problems in the region. Nevertheless, these agreements have fundamental problems to be solved. First, the three agreements do not consider the biological features of fish stocks that migrate beyond the jurisdictional areas of one country. Second, none of the three agreements provides the right to regulate the third party’s fishermen and fishing vessels. Third, there are no agreements to regulate or manage the waters overlapped by more than the three countries.