Introduction: State of World Fisheries. A wake-up call for the regional seas of ASEAN and the Central Indo-Pacific. Exploitation of the global marine commons has led to the depletion of most major fish stocks, and to a growing recognition of the need to take global and regional collective action to manage fisheries resources. Freedom to Fish, among the five customary freedoms of the high seas, is no longer an absolute right, and has been qualified under UNCLOS Part VII, Article 127. This is to take into account a balancing of interests between coastal States and other fishing States, with direct implications on conservation and resource exploitation. Overfishing has become a household word. The obvious remedy, fisheries management, has hardly resonated at home.
Fisheries – The Last Hunted Resource. Fish are the last hunted resource on the planet in a large commercial scale. All other hunted resources have been significantly depleted. Fish are a renewable natural resource. They will renew, but a minimum amount needs to be left for resource renewal. Unfortunately, fish stocks are not given a fair chance to renew globally. Regionally and close to home, in the South China Sea (SCS) maritime region, the depletion of fish stocks has been further aggravated by the sovereignty/sovereign rights maritime disputes that have prevented a collective and cooperative management of the resources.
Fisheries – A Global Commodity. Rising demand for fish has been a major driver of increased fishing efforts. Spurred by the globalization of markets for seafood, 37% of global fish production flows into international trade, making fish one of the most traded “agricultural” commodities, or 13% of global agricultural trade. For the ASEAN region, the ASEAN Report to the World Summit on Sustainable Development held in Johannesburg, South Africa in 2002, states, “Pressure on marine fishery resources is increasing due to high domestic and export demand. Over-exploitation has resulted in a decline in productivity of a large number of species. A number of local stocks of small coastal pelagic fish are nearing full exploitation.” Growing overexploitation have reduced the benefits of increasing globalization in fish trade, as ineffective management of fisheries has allowed depletion of fish stocks, which are not allowed to renew. The natural capital or fish wealth has not been allowed to obsserve a “minimum maintaining balance.” This is an alarming scenario considering that 75%-80% of Earth’s surface is ocean, the very reason it is called “Ocean Planet.”
The key problem for Fisheries. The systems in which fisheries are placed have led to unbridled competition among fishers. The very concept of an Exclusive Economic Zone (EEZ) in UNCLOS, which was introduced by Latin American countries and originally called the patrimonial sea, is a socio-economic self-defense mechanism to establish national control over fisheries resources offshore of sovereign jurisdictions. This maritime jurisdiction is now labeled as sovereign rights. Overfishing is a symptom of the same underlying management problem —no defined property or user rights. But re-assigning property and user rights to a communal resource is not without its problems. It has become very difficult or impossible in some countries where communities rely on the sea as their Social Security System/safety net to which they can turn to when nothing else can provide. In the case of coastal communities in the Philippines and the ASEAN and Central Indo-Pacific countries, the reverse is however true.
The Evolution Of Fisheries Management. In South Pacific countries, the “tambu” area has long been a practice, where communities stop fishing for a certain period of time to enable fish to become less fearful of fishers and easier to catch. Any solution for fisheries must be an integrated approach. For fisheries management to be successful, it should involve all levels of governance, from Local Government Units (LGUs) to Regional Development Council (RDC) and National Government levels, and involved industries. An integrated approach must be multi-disciplined, involving science, anthropology, economics, social science and many others. But at the heart of it all, there must be a focus on having fishers involved in the beginning.
Modern Regional Fisheries Management. Regional cooperation among States forms the base for management of renewable oceanic and marine resources under UNCLOS Part IX, implemented and supported in national legislations and regulations. In the international scale are the Food and Agriculture Organization (FAO) Compliance Agreement, United Nations Fish Stocks Agreement (UNFSA) and Port State Measures Agreement (PMSA). To preserve both the fish stocks and the ecosystems is the Convention on Biological Diversity (CBD). The global tuna community has formed 5 tuna Regional Fisheries Management Organizations (RFMOs) to collectively manage the global tuna resources (WCPFC, IATTC, ICCAT, CCSBT, IOTC). Regional fisheries management organizations have been formed with 2 RFMOs: (1) North Pacific Fisheries Commission, and (2) Commission for the South Pacific Regional Fisheries Management Organization. These Commissions focus on non-tuna, deep water demersal, and small pelagic fisheries species. National and Regional Plans of Action for conservation of threatened species, best practices for ecosystem management, and action plans to stop illegal, unreported and unregulated (IUU) fishing, would help significantly. This is the ocean governance concept behind UNCLOS Part IX. But there is no regional fisheries organization to manage fisheries in the ASEAN and the Central Indo-Pacific seas.
State of regional fisheries in the ASEAN and the Central Indo-Pacific seas. The state of regional fisheries in these seas assumes the same scenario as world fisheries. Fisheries depletion in these seas while in large part attributable to indifference among the regional countries despite a rules-based exhortation embodied in UNCLOS Part IX Article 123, is due to sovereignty/sovereign rights political conflict situation in the SCS. It is not intended to revisit the political events of contemporary history in the region, but rather to look to the future and the positive opportunities that are presenting themselves for the Philippines to assume a rightful regional leadership role under ASEAN Vision 2025 in the areas of regional and global non-traditional maritime security interests in the SCS: (1) Sustainability, conservation and protection of the renewable marine resources in the SCS to secure the appropriate benefits to the regional coastal States; (2) Establishing maritime peace, security and good order for all legal activities; those for global and regional sea trade through the waters of the SCS to safeguard core regional interest of AEC 2015 integration and consolidation, and in the Central Indo-Pacific; (3) Joint scientific research and policy formulation for the national and collective interests of the coastal SCS States, utilizing and enhancing the existing marine/maritime infrastructure; and (4) Discourse leading towards an appropriate regional Agreement for the management, exploration and harvesting of non-renewable resources in the SCS seabed areas.
The collective regional/global maritime interests and concerns are to be comprehensively and cooperatively addressed under UNCLOS Part IX as part of the AEC 2015 integration and consolidation. Noting the uniqueness of this proposed regional oceans management organization for the ASEAN and the Central Indo-Pacific seas, with a wider focus on all maritime issues from seabed to surface resources and all ocean sector activities including shipping, it may be more appropriate to consider a model wider in scope in its mandate. A suitable model would be the Arctic Council with its mandate to address all components of management of resources and operations that may impact on the maritime region.
The Concept of a Regional Oceans Management Commission for the seas of the ASEAN and the Central Indo-Pacific, with an initial focus on the SCS. The SCS is of paramount importance to the ASEAN for geo-economic and geo-political reasons that impact on regional maritime peace, good order and security essential to AEC 2015 integration and connectivity, as well as on the renewable and non-renewable marine and seabed resources found therein that contribute to the surrounding coastal States’ socio-economic and food security requirements. The following facts taken from the ASEAN Report to the World Summit on Sustainable Development would be a wake-up call for a regional joint cooperation for comprehensive ocean governance under a durable legal and scientific framework and system for the seas of the ASEAN, extrapolated to the Central Indo-Pacific, starting with the SCS.
The concept and framework agreements for comprehensive ocean governance including fisheries cooperation for the ASEAN and the Central Indo-Pacific seas, centered on the SCS, already exists under UNCLOS Part IX. This is a normative exhortation for cooperation by all interested States specifically the stakeholder riparian States of the SCS and Central Indo-Pacific seas as interconnected seas. Most riparian States in the ASEAN and the Central Indo-Pacific seas are signatories to the UNCLOS, thus all Parties inclusive to a joint cooperation arrangement for fisheries resources and overall ocean governance in the ASEAN and Central Indo-Pacific seas are already familiar with the structure for cooperation under UNCLOS. With overlapping and unsolvable jurisdictional maritime disputes in the SCS, fisheries resources should be treated as a regional “common heritage of mankind” and given the appropriate attention.
Ocean governance on marine environment and fisheries is a collective core interest among countries bordering it i.e., the ASEAN countries and China, which are Parties to the Declaration on the Conduct of Parties in the SCS (ASEAN-China DOC-SCS). Joint Cooperation in ocean governance in the SCS must be ASEAN-China implementing the ASEAN-China DOC-SCS, but must be initiated by the ASEAN to establish centrality. On the other hand, certain maritime countries, extra-regional States with Dialogue Partnership with the ASEAN, have declared that the SCS is an area of interest in regard to freedom of navigation. These separate interests need not clash; they are not incompatible. The win-win solution already enshrined in UNCLOS Part IX Article 123(d), is for all States, whether enclosed/semi-enclosed sea bordering States, to come together and construct cooperative arrangements for ocean governance and shared maritime interests. The bottom line is that all shipping activity must be regulated, and shipping routes/SLOCs must be established taking into account accommodations in jurisdictional regimes but better still “shelving” them altogether for the wider benefit of all countries concerned.
The legal and scientific regional fisheries cooperation framework from which implementation can be built upon exists. These are compelled under the overall cooperation framework provided under UNCLOS Part IX. It is also provided in the ASEAN-China DOC-SCS that can serve as a platform for ASEAN centrality. There is also a suitable implementing model for organizational and institutional structure, in the newly established Arctic Council.
A science-based regional marine resources and biodiversity management, conservation, and environmental protection scheme, must be instituted. Agreed approaches to implementing safety, security and freedom of navigation for good ocean governance, must be formulated. This is essential considering the recurrent incidents where vessels continue to run aground in the Great Barrier Reef and the Torres Straits where shipping activity is relatively sparse compared to the SCS and archipelagic waters of Southeast Asia. Marine environmental and safety of navigation incidents continue to hound the Straits of Malacca and Singapore despite being accurately charted with an adequate maritime governance scheme in place. The SCS, including the vulnerable archipelagic waters adjacent to it, are grave maritime accidents waiting to happen. This is a compelling reason why agreement for a regional ocean governance joint cooperation is urgent and necessary. Circumstances around the ASEAN and the Central Indo-Pacific seas call for a special governance regime, and point to a motive for the establishment of the Arctic Council.
Establishing ASEAN centrality in regional ocean governance under ASEAN Vision 2025, and beyond. The ASEAN-China DOC-SCS is the normative setting for the SCS as the starting point for a wide ocean governance. The non-traditional maritime security concerns are specifically mentioned at Point 7 —marine environmental protection and marine scientific research, and safety and freedom of navigation. This proposed wider-scale cooperation covers all aspects of ocean governance of a large maritime region and not confined to the disputed areas must morph into a permanent UNCLOS Part IX arrangement. The ASEAN and Central Indo-Pacific seas is a large marine ecoregional system (LME) sharing “characteristic regional features” that forms a unified ocean space and ecoregion for purposes of a comprehensive governance framework under UNCLOS Part IX on enclosed/semi-enclosed seas. The Arctic Council concept and processes is an appropriate model for institutionalized cooperation under an UNCLOS Part IX.
UNCLOS Article 123 prescribes cooperation among States bordering enclosed and semi-enclosed seas. The start of cooperation must be among regional coastal States, but the regional requirements would be served best through the establishment of an appropriate regional organization, initially for fisheries resources. China, an ASEAN Dialogue Partner, may consider making available resources from its ASEAN Maritime Cooperation Fund to establish such an Organization. ASEAN Dialogue Partner, Japan, has single-handedly sponsored the establishment of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), a non-traditional maritime security concern. Other Dialogue Partners with existing maritime cooperation programs with ASEAN countries e.g., New Zealand and EU, may align these programs under the ASEAN umbrella on non-traditional maritime security concerns. Assistance in regional maritime cooperation with ASEAN Dialogue Partners can be maximized in a unified program under UNCLOS Parts XII, XIII and XIV. This could start with a multilateral planning session to formulate an infrastructure framework with concepts adapted from the Arctic Council, and suitable elements from the BBNJ conservation.
Sound fundamental pillars for successful regional fisheries management. The current infrastructure in the SCS could provide a constructive initial step forward to establish joint cooperation if consideration is given to their use as regional science and policy research platforms, compliance, and maritime security outposts for the ASEAN and the wider Central Indo-Pacific region. A suggested approach for ASEAN Vision 2025 and institutionalized for AEC 2015 and beyond, would include the following: (1) Sound Science and Information; (2) Good Governance; (3) An Integrated approach; (4) A multi-disciplinary approach; (5) The 192 UNCLOS; (6) The EEZ, UNCLOS Articles 55-75; (7) Non-Governmental Organizations (NGOs); and (8) Marine Protected Areas (MPAs).
Revisiting the sound fundamental pillars would help demonstrate and create awareness of the necessity and complexities of fisheries management. A simple step-by-step solution might be the best approach. Fisheries have a way of confusing with its difficult approaches, science and activities. Making things simpler could lead to greater success; and to move at a slow but laser-focused pace could outrun the others.
The Integrated Coastal Zone Management (ICZM) scheme must enlist LGUs to accept responsibilities for sustainable management of coastal resources and ecosystems. This includes the wider issues of collective and collaborative management, protection and conservation of these resources in the offshore areas, and offshore issues of national and regional peace and security, seabed resource management, and assurances of the regional security and protection for legal sea trade to set the basis for the establishment of the first Regional Oceans Management Commissions/Authorities (ROMC/ROMA) to address all maritime issues under one umbrella Commission. In essence, this could become the first ROMC/ROMA under the UNGA Resolution 69/292, which extends the authority of the proposed BBNJ legislation to possibly include coastal state EEZs. However, for the ASEAN and the Central Indo-Pacific seas, a BBNJ framework would not be necessary, if UNCLOS Part IX is implemented with BBNJ elements.
An indispensable fisheries and ocean governance tool. Referred to as the implementing arm of management planning, a Monitoring Control and Surveillance System (MCS) is for information gathering for management purposes. It is an indispensible management tool for ocean governance, essential for effective policy formulation, implementation, and in management of relations with other countries. MCS could cover a geographical scope that includes coastal areas outward to the EEZ, linking it with those of neighboring countries for an efficient management of bilateral or multilateral concerns with trans-boundary aspects, which is the rationale for UNCLOS Part IX on enclosed and semi-enclosed seas.
An MCS must have a regional breadth to optimize effectiveness to monitor the activities of fishery management in archipelagic waters, territorial seas, and EEZ. Joint fisheries management with neighboring countries especially for straddling and highly migratory fish stocks, and transit of foreign fishing vessels, would ensure against poaching in other national maritime jurisdictions; facilitate the management of passage of domestic and foreign vessels; and other purposes such as monitoring and enforcement of vessel traffic systems, vessel traffic separation schemes, port management, search and rescue, and anti-piracy enforcement. A comprehensive MCS can monitor marine environments and control incursions in MPAs.
The vessel tracking and monitoring aspect of MCS could settle the long-running issue whether State vessels, especially naval vessels, need prior permission of the coastal State before traversing its territorial sea or archipelagic waters in exercise of the right of innocent passage. The system can allay the real risks of ship collisions and consequent damage to and pollution of the marine environment, which have been considerably amplified as a result of the increase in global vessel traffic density as well as ship size, especially within the ASEAN region. MCS could also help prevent heavy losses of human lives from ferry or domestic vessel accidents. An MCS system can significantly address IUU fishing, environmental pollution, implement the Port State Measures Agreement (PMSA), and non-traditional maritime security concerns, such as slavery at sea and anti-piracy.
An MCS is a necessity dictated by the geographical, geological and geomorphological circumstances of the ASEAN and the Central Indo-Pacific seas, facing threats from human activities. Even if confined to purely maritime applications, an MCS system would need to cover every square nautical mile of maritime jurisdiction. MCS would be a foreign policy management and implementation tool for resolving issues, or for cooperating to address maritime trans-boundary concerns.
Instituting ocean governance in ASEAN and the Central Indo-Pacific seas is not a mere proposition but rather a mandate for regional cooperation on conservation management. Such governance mechanism could help in joint development of marine and seabed resources, and facilitate regional trade through safe and free navigation. Cooperative ocean governance could help facilitate resolution of traditional maritime security issues, which the compelled cooperation can generate. This is acknowledged in the DOC-SCS Preambular Paragraphs 2 & 4, declaring Parties being “cognizant of the need to promote a peaceful, friendly and harmonious environment in the SCS between ASEAN and China for the enhancement of peace, stability, prosperity and economic growth in the region” reaffirming “determination to consolidate and develop the friendship and cooperation existing between their people and governments with the view of promoting 21st century-oriented partnership of good neighborliness and trust” to “enhance favorable conditions for a peaceful and durable solution of differences and disputes among countries concerned.”
Conclusion: Global ocean governance and ASEAN Vision 2025 in a regional catch-up mode. There are clear indications that the ASEAN had cognizance of the necessity for a cooperative arrangement for regional ocean governance, particularly fisheries. The ASEAN Report to the World Summit on Sustainable Development in 2002 states, “the threats to coastal and marine resources include pollution, shipping and accidental oil spills, siltation due to soil erosion, over-fishing, and destructive fishing methods. ASEAN member countries are addressing these threats through the formulation of detailed regional action plans for sustainable development and the management of coastal and marine resources, the development of a framework of cooperation and exchange of information, and creating public awareness of the need for rational management of coastal and marine resources.” The same Report also mentions a program “to achieve sustainable supplies of fish and fishery products in the ASEAN region, (with) ministers responsible for fisheries to adopt a Resolution on Sustainable Fisheries for Food Security for the ASEAN Region.”
The ASEAN Tourism Agreement was likewise signed in 2002 recognizing the “valuable role of tourism in narrowing the development gap among ASEAN Member States as well as fostering mutual understanding and regional stability,” and resolving “the development of ASEAN as a single tourism destination.”
An International legally binding instrument on BBNJ under UNGA Resolution 69/292 is swiftly moving forward. Concern is raised that if implemented by a global, top down, authoritative organization to dictate to States and Regional Organizations how to manage their high seas, it would threaten the authority of existing regional mechanisms, and influence management inside the EEZ. This counters years of promotion of the subsidiarity principle, or decision-making at the lowest level of management; and is actually contrary to the UNGA resolution 69/292 mandate. BBNJ would further complicate fisheries management and biodiversity conservation. The BBNJ would undermine the key legal authority of existing regional mechanisms, hence, an incentive for ASEAN-China to ensure they maintain full control of regional interests by developing a regional mechanism under the Arctic Council. Implementation of UNCLOS Part IX would render the BBNJ of no added value to maritime and ocean governance for the ASEAN and the Central Indo-Pacific seas. Whether ASEAN links BBNJ to UNCLOS Part IV or not, ASEAN must have a common stand to preempt it.
ASEAN’s work on fisheries requires updating, and should be consolidated with ASEAN Vision 2025. If this proposition is acceptable to the ASEAN, a next task would be to develop an appropriate organizational structure, with TORs for the proposed Commission, Secretariat, and the core personnel with inputs from the ASEAN@50 Summits, starting with ASEAN-China collaboration as Dialogue Partners. This approach could serve as a core discussion paper for a closed session of the Heads of State of all SCS coastal States at a “Regional Forum Conference to Address Common Interests in the Collective Management of the seas of ASEAN and the Indo-Pacific, staking out ASEAN centrality.”
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