On Fisheries Conflicts Between China and the Philippines in Disputed South China Sea Waters

JIANG Wei

Abstract:The disputed South China Sea (SCS) waters between China and the Philippines include the water area of the Nansha Islands with the sovereignty dispute over it and the overlapping waters between the Taiwan Island and the Philippine Islands.Fisheries management activities and private fisheries activities authorized by the government in disputed waters are acts of a State exercising its jurisdiction,and they may serve as evidence of effective occupation over disputed territories.Since fisheries conflicts in disputed waters involved jurisdiction and territorial sovereignty over the water area,the parties to the dispute may end up having political and legal conflicts in the dispute settlement process.The 1997 People of the Philippines v.Chia Say Chaw,et al.,the 2013 Guang Da Xing No.28 incident,and the case involving the fishing boat Qiong Qionghai 09063 in 2014 fully reflected that fisheries conflicts are not only legal disputes but also political issues.Through cooperation,China and the Philippines can manage differences and promote the resolution of fisheries conflicts between both States in disputed SCS waters.

Key Words:South China Sea (SCS);Disputed waters;Fisheries conflicts;the Philippines

I.Territorial Disputes and Its Relationship with Fisheries Activities

Situated to the south of China’s mainland,and connected by narrow straits and waterways with the Pacific Ocean to the east and the Indian Ocean to the west,the South China Sea is a semi-closed sea extending from northeast to southwest.To its north are the mainland and Taiwan Dao of China,to its south Kalimantan Island and Sumatra Island,to its east the Philippine Islands,and to its west the Indo-China Peninsula and the Malay Peninsula.1China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,The State Council Information Office of the People’s Republic of China,para.1.China has unquestionable sovereignty over the SCS Islands.2The Chinese people have since ancient times lived and engaged in production activities on Nanhai Zhudao and in relevant waters.China is the first to have discovered,named,explored and exploited Nanhai Zhudao and relevant waters,and the first to have continuously,peacefully and effectively exercised sovereignty and jurisdiction over them,thus establishing sovereignty over Nanhai Zhudao and the relevant rights and interests in the South China Sea.See China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,The State Council Information Office of the People’s Republic of China,para.8.Starting in the 1970s,however,the Philippines invaded and illegally occupied by force some islands and reefs of China’s Nansha Islands and raised illegal territorial claims.In June 1978,Philippine President Ferdinand Marcos signed Presidential Decree No.1596,which designated some islands and reefs of China’s Nansha Islands and large areas of their surrounding waters as“Kalayaan Island Group”,set up“Municipality of Kalayaan”and illegally included them in the Philippine territory.3The Philippines invaded and illegally occupied Mahuan Dao and Feixin Dao in August and September 1970,Nanyao Dao and Zhongye Dao in April 1971,Xiyue Dao and Beizi Dao in July 1971,Shuanghuang Shazhou in March 1978 and Siling Jiao in July 1980.See The State Council Information Office of the People’s Republic of China:China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,para.59.Additionally,the Philippines has enacted a series of national laws to lay its own claims of territorial sea,exclusive economic zone and continental shelf,part of which conflicted with China’s maritime rights and interests in the SCS.4See The State Council Information Office of the People’s Republic of China:China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,para.60.The disputed waters between China and the Philippines in the SCS,therefore,include disputed waters associated with the sovereignty disputes in the Nansha Islands and overlapping areas between the Taiwan Island and the Philippines Islands.

Generally,fisheries activities can be divided into fisheries management activities,private fisheries activities authorized by the government and private fisheries activities.In effect,fisheries management activities and private fisheries activities authorized by the government in disputed waters are administrative acts of a State exercising its sovereignty.

With regard to disputed waters associated with sovereignty disputes,fisheries activities are germane to territorial sovereignty.In such disputed areas,international law provides five modes of acquisition of territorial sovereignty,namely,occupation,prescription,accretion,cession,and conquest.5Hersch Lauterpacht ed.,Oppenheim’s International Law (translated by WANG Tieya and CHEN Tiqiang),Beijing:The Commercial Press,1981,p.69.(in Chinese)Of these five modes,occupation is closely related to the fisheries conflicts.By theory and practice, occupation is mostly considered effective through the possession of and establishing administration over the territory in the name of and for the acquiring State.Occupation thus effected is named effective occupation,in contradistinction to fictitious occupation.Possession and administration in the name of the acquiring State6Possession means the territory must really be taken into possession by the occupying State.For this purpose,it is necessary that the respective State has taken the territory with the intention to acquire sovereignty over it.This can only be done by a settlement on the territory accompanied by some formal act,which announces both that the territory has been taken possession of and that the possessor intends to keep it under his sovereignty.The necessary formal act is usually performed either by a proclamation or by the hoisting of a flag.But such formal act by itself constitutes fictitious occupation only,unless there is a settlement which is able to keep up the authority of the flag on the territory.After having,in the aforementioned method,taken possession of a territory,the possessor must establish some kind of administration thereon,which shows that the territory is really governed by the new possessor.If within a reasonable time after the act of taking possession the possessor does not establish some responsible authority which exercises governing functions,there is then no effective occupation,since in fact no sovereignty of a State is exercised over the territory.See Hersch Lauterpacht ed.,Oppenheim’s International Law (translated by WANG Tieya and CHEN Tiqiang),Beijing:The Commercial Press,1981,pp.76～78.(in Chinese)are the two essential elements that constitute an effective occupation.7Hersch Lauterpacht ed.,Oppenheim’s International Law (translated by WANG Tieya and CHEN Tiqiang),Beijing:The Commercial Press,1981,p.76.(in Chinese)It should be noted that only no State’s land,which is either entirely uninhabited or inhabited by natives whose community is not to be considered as a State,can be the object of occupation.8Hersch Lauterpacht ed.,Oppenheim’s International Law (translated by WANG Tieya and CHEN Tiqiang),Beijing:The Commercial Press,1981,p.91.(in Chinese)

Fisheries management activities and private fisheries activities authorized by the government,from the perspective of occupation provided in the international law,fall into the scope of administration.Additionally,the International Court of Justice (hereinafter as“the Court”) has further illustrated that,in actual cases such as in the cases ofSovereignty over Pulau Ligitan and Pulau Sipadanin 1998 andNicaragua v.Hondurasin 2002,such fisheries activities are evidence of effective occupation.

In the case ofSovereignty over Pulau Ligitan and Pulau Sipadan(Indonesia/Malaysia)in 1998,Indonesia and Malaysia cited different arguments to demonstrate their activities as effective occupation in both islands.The former put forward evidence of the patrols of the Royal Dutch Navy vessels in the area,the activities of the Indonesian Navy,the activities of Indonesian fishermen,and the Indonesian Act No.4 of 8 February 1960,which draws Indonesia’s archipelagic baselines.9On the issue of Indonesian Act No.4,Indonesia acknowledged that Pulau Ligitan or Pulau Sipadan was not used as a point for the baseline while demarcating territorial waters of the archipelago,but argued that this did not mean that Indonesia denied these two islands as its territory.The arguments submitted by Malaysia included:(a) the measures taken by the North Borneo authorities to regulate and control the captures of turtles and the collection of turtle eggs,which is the most important economic activity in Pulau Sipadan for many years;(b) the establishment of a bird reserve in Pulau Sipadan in 1933;(c)the fact that the North Borneo authorities constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963,that those lighthouses exist to this day and that they have been maintained by Malaysian authorities since its independence.

The Court held that only those actions that explicitly mention the disputed islands constitute a relevant display of the authorization.Activities by private persons such as Indonesian fishermen cannot be considered as effective occupation,since they are neither on the basis of official regulations nor under governmental authority.The Court concluded that the activities by Indonesia were not“in the name of sovereignty”and did not thereby reflect the intention and will to act as sovereign.With regard to the measures taken by Malaysia,the Court was of the opinion that the measures taken to regulate and control the collecting of turtle eggs and the establishment of a bird reserve must be seen as regulatory and administrative assertions of authority over territory that is specified by name.The Court further noted that the activities relied upon by Malaysia,both in its own name and as successor State of Great Britain,are modest in number but diverse in character and include legislative,administrative and quasi-judicial acts.They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands.Moreover,at the time when Malaysia carried out these activities,neither Indonesia nor its predecessor,the Netherlands,ever expressed its disagreement or protest.Therefore,the Court concluded that sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia.10Summaries of Judgements,Advisory Opinions and Orders of the International Court of Justice,1997-2002.New York:United Nations,2005,pp.287～288.(in Chinese)

As to the Case Concerning Maritime Delimitation Between Nicaragua and Honduras in the Caribbean Sea in 2002 (Nicaragua v.Honduras),the Court held that,in respect of effective occupation,the Honduran authorities issued fishing permits with the belief that they had a legal entitlement to the maritime areas around the islands.The evidence of Honduran-regulated fishing boats and construction on the islands,moreover,is also legally relevant for the Court under the category of administrative and legislative control.Finally,the Court believed that the permits issued by the Honduran Government for the construction of houses in Savanna Cay and for the storage of fishing equipment in the same cay provided by the municipality of Puerto Lempira are acts,though modest,of the exercise of authority,and as evidence of effective occupation.11Summaries of Judgements,Advisory Opinions and Orders of the International Court of Justice,2003-2007.New York:United Nations,2010,pp.208～209.(in Chinese)The Court thereby ruled that Honduras has sovereignty over disputed islands and reefs.

The author has summarized elements of the implementation of effective occupation based on the above cases ruled by the Court.First,the activities must exercise a State’s certain authority,such as legislative,administrative,and judicial or quasi-judicial authority;second,the above activities must explicitly mention or be applied to disputed islands or reefs;third,these activities have continued for a long time,indicating the intention and will of a State to regulate disputed islands and reefs;fourth,the other party to the disputed areas did not express any objection or protest.12JIANG Wei,Refuting the SCS Version of“China Threat”-on China’s Sovereignty over Nanhai Zhudao and Foreign Peaceful Policies from Perspectives of China’s History and Law,Journal of International Economic Law,Volume 2014,Number 2.(in Chinese)Therefore,fisheries management activities explicitly referred to,or applied to the disputed territory as well as private fisheries activities authorized by the government could be regarded as valid evidence of effective occupation.

Ultimately,the relationship between fishery activities in disputed sea areas and territorial sovereignty could be summarized as follows:(a) Private fisheries activities that are not based on official regulations or authorized by the government cannot be regarded as valid evidence of effective occupation.That is because such activities do not constitute acts“in the name of sovereignty”,and reflect the intention and will to act as sovereign.(b) Fishery management activities related to disputed islands and reefs and private fisheries activities authorized by the government are manifestations of a State’s exercise of power and evidence of effective occupation of disputed islands.

II.Typical Cases of Fisheries Conflicts Between China and the Philippines

In practice nowadays,in order to obtain such evidence in favour of showing a State’s effective occupation,the parties to the dispute compete to exercise activities of effective occupation only to exacerbate the dispute and the regional tension.Due to the exercise of competitive jurisdiction,the absence of international regulations for the mediation of disputes,coupled with the incited national sentiments,it is likely that there are violations of domestic and international law in disputed fisheries cases,including the use of force and the destruction of the oceans.In particular,once a State’s fishermen have such illegal acts,they not only make their home State diplomatically disadvantaged,but it is also prone to their activities being utilised by another State to accuse their home State of indulging in such to destruct the marine environment for winning over international support and favourable rulings over sovereignty and maritime rights.Cases that reflected the above-mentioned characteristics of fisheries disputes in disputed sea areas are as follows:theCase of People of the Philippines v.Chia Say Chaw,et al.in 1997,theGuang Da Xing No.28 Incidentin 2013,and theCapture of Chinese Fishermen on the Fishing Vessel Qiong Qionghai 09063in 2014.

A.The Case of People of the Philippines v.Chia Say Chaw,et al.in 1997

In May 1997,a Chinese fishing boat and 21 Chinese fishermen on board were illegally detained by the Philippine Navy in the Chinese territorial waters of Huangyan Island and were brought to court.The case,entitled as“the Philippines v.Chia Say Chaw,et al”,is also known as the criminalCase No.212-97.13The People of the Philippines v.Chia Say Chaw,et al.,Crim.Case No.212-97,from Prov.Prosecutor Dorentino Z.Floresta,Complainant,vs.Judge Eliodoro G.Ubiadas,Regional Trial Court,Olongapo City,Branch 72 respondent,Decision A.M.No.RTJ-03-1774.May 27,2004,at http://sc.judiciary.gov.ph/jurisprudence/2004/may2004/am_rtj_03_1774.htm,7 October 2014.The judge,Eliodoro G.Ubiadas,believes that,according to Article 1 of the 1599 Presidential Decree of the Philippines,the Philippine exclusive economic zone (EEZ) should extend beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.Where the outer boundary of the area as determined here overlaps with the EEZ of a contiguous or neighbouring State,the EEZ line shall be determined in consultation with the State concerned or in accordance with recognized norms of international law relating to delimitation.14ZHANG Haiwen,LI Hongyun eds.,Compilation of the World Maritime Legislation:Asia and South Pacific States,Beijing:Law Press·China,2012,p.463.(in Chinese)Since the site where the 21 Chinese fishermen were arrested belongs to the disputed waters of China and the Philippines,and the two States have not yet agreed upon relevant regulations regarding this area,Judge Ubiadas ruled that, there is no legal basis for the allegations that Chinese fishermen have illegally invaded the Philippine territory;the court thus has no jurisdiction over the case.15The People of the Philippines v.Chia Say Chaw,et al.,Crim.Case No.212-97,from Prov.Prosecutor Dorentino Z.Floresta,Complainant,vs.Judge Eliodoro G.Ubiadas,Regional Trial Court,Olongapo City,Branch 72 respondent,Decision A.M.No.RTJ-03-1774.May 27,2004,at http://sc.judiciary.gov.ph/jurisprudence/2004/may2004/am_rtj_03_1774.htm,7 October 2014.On 9 July 1997,these Chinese fishermen were acquitted.16China’s Sovereignty over Huangyan Dao Indisputable,the Philippines’ Claims Started in 1997,at http://news.ifeng.com/mil/2/detail_2012_04/26/14173948_2.shtml,7 October 2014.(in Chinese)

The case provoked outcries in the Philippines,and Judge Ubiadas,after making the above-mentioned order,was accused by the prosecutor Dorentino Z.Floresta,in the name of gross ignorance of the law,ensued by the public condemnation from Domingo Siazon,the Secretary General of the Department of Foreign Affairs.17Prov.Prosecutor Dorentino Z.Floresta,Complainant,vs.Judge Eliodoro G.Ubiadas,Regional Trial Court,Olongapo City,Branch 72 respondent,Decision A.M.No.RTJ-03-1774.27 May 2004,at http://sc.judiciary.gov.ph/jurisprudence/2004/may2004/am_rtj_03_1774.htm,7 October 2014.

Prosecutor Floresta believed that Judge Ubiadas’ rejection of the case ofthe Philippines v.Chia Say Chaw,et al.due to the lack of jurisdiction on 9 July 1997,reflected gross ignorance of the law and grave abuse of authority,which essentially gave the Chinese government sovereignty and criminal jurisdiction of their own State.In addition,Prosecutor Floresta subsequently requested Judge Ubiadas to reconsider and/or clarify his above said Order of 9 July 1997;but in the following two years,Judge Ubiadas did not resolve the matter,violating Canon 3,Rule 3.05 of the Code of Judicial Conduct,which provides that judges shall promptly dispose of the court’s business and decide cases within the required periods.To be more specific,the Supreme Court Administrative Circular No.13 requires lower courts to resolve cases or matters within three months or ninety days from date of submission.18SC Circular No.13 (July 1,1987),at http://www.lawphil.net/courts/supreme/cn/cn_13_1987.html,7 October 2014.

Judge Ubiadas insisted that,in view of the disputed claims between the Philippines and China in the waters of Huangyan Island and the lack of agreements between the two States to determine the EEZ border,the court thus exercises no jurisdiction over the area,where the 12 Chinese fishermen were arrested.As for the fact that he did not deal with the application of the Prosecutor Floresta,it was because the detained Chinese fishermen had already been released at that time.Moreover,the representatives of the Department of Foreign Affairs informed him later that the Department did not request the cancellation of his order,but rather suggested that the order be amended;the prosecutor’s application thus is an ostensible request.

Prosecutor Floresta refuted that,at the time of his request of recanting the order on 11 July 1997,the Chinese fishermen were not released,since another illegal fishing case related to these Chinese fishermen was awaiting investigation.The representatives from the Department of Foreign Affairs,moreover,have expressed the serious consequences of his Order of dismissal on the grounds of lack of jurisdiction to Judge Ubiadas regarding territorial integrity and national security.In fact,Secretary General Domingo Siazon publicly censured Judge Ubiadas for making such an order in an article in the Philippine Daily Inquirer,July 13th.In addition,there is no statement from the Department of Foreign Affairs regarding not to withdraw his order.An application for reconsideration of the order of the caseNo.212-97has been filed in the court.Finally,Floresta stated,when he submitted a request for reconsideration,Judge Ubiadas has the obligation to make a decision,regardless of Chinese fishermen’s whereabouts.

Although the Supreme Court of the Philippines did not investigate the case of Judge Ubiadas releasing of Chinese fishermen,it held him accountable for the procedure of disposing the case.It stated that,according to Articles VIII,Section 15(1) of the Constitution of the Republic of the Philippines in 1987 and Canon 3,Rule 3.05 of the Code of Judicial Conduct,judges shall dispose of their cases promptly and within a prescribed period of time,failing which they are liable for gross inefficiency.Therefore,Judge Ubiadas was guilty for his undue delay.19The People of the Philippines v.Chia Say Chaw,et al.,Crim.Case No.212-97,from Prov.Prosecutor Dorentino Z.Floresta,Complainant,vs.Judge Eliodoro G.Ubiadas,Regional Trial Court,Olongapo City,Branch 72 Respondent,Decision A.M.No.RTJ-03-1774,May 27,2004,at https://www.lawphil.net/judjuris/juri2004/may2004/am_rtj_03_1774_2004.html,7 October 2014.

Judge Ubiadas believed that the waters around the Huangyan Island are disputed areas of China and the Philippines,thus releasing the Chinese fishermen illegally detained by the Philippines,,however,led to the interference of the Department of Foreign Affairs.The follow-up of the case reveals its nature of politics in three aspects:(1) Prosecutor Floresta considered Judge Ubiadas’order was essentially to offer China the sovereignty and criminal jurisdiction of the Philippines;(2) the Secretary General of the Department of Foreign Affairs,Domingo Siazon,publicly censured Judge Ubiadas’ decision in an article in Philippine Daily Inquirer;(3) the representatives of the Department of Foreign Affairs demanded Judge Ubiadas to amend his order,arguing that it would result in serious consequences for territorial integrity and national security.

B.The Guang Da Xing No.28 Incident in 2013

On 9 May 2013,the Chinese fishing boatGuang Da Xing No.28was operating at 19°59'13.2"N and 122°54'50.6"E.Philippine commander Arnold Dela Cruzy Enriquez suspected that the fishing boat was fishing in the nearby waters(the overlapping area of the EEZ of China and the Philippines) and intended to arrest the crew.During the chase,the Philippine Coast Guard officers fired a total of 108 bullets within 75 minutes,45 of which hit the boat;the vessel suffered serious damage,including engine failure,while the main deck experienced a severe and concentrated attack,judging from the distribution of the bullet holes.What’s more,a bullet shot a fisherman Hung Shih-cheng and caused his death.20“Ministry of Justice”:“Ministry of Justice”Addresses Guang Da Xing No.28 Shooting Incident Investigation Reports,at https://www.moj.gov.tw/cp-418-42498-b811a-095.html,11 August 2014.The case triggered serious political and legal conflicts between theTaiwanAuthority of China and the Philippines.

1.Political Conflict

On 11 May 2013,theTaiwanAuthority of China announced that they would impose more sanctions on the Philippines if it did not issue a formal apology,provide compensation,punish those responsible for the killing,and initiate fishery agreement negotiations.21“President”Ma Holds“National Security Council Meeting”,Issues Demands Regarding Incident Involving Guang Da Xing No.28 Fishing Vessel,at https://english.president.gov.tw/NEWS/4153,11 August 2014.On the evening of 14 May 2013,Representative Antonio Basilio explained that the Philippine government had already taken the following measures:

(a) MECO Chairman Amadeo R.Perez,Jr.would convey the Filipino people’s deep regret and apology to the family of Mr.Hung Shih-cheng,as well as to the people of Taiwan,over the unfortunate loss of life in the course of a fisheries law enforcement operation on 9 May 2013 by a Philippine Coast Guard/Bureau of Fisheries and Aquatic Resources maritime patrol in waters in the northern Philippines.

(b) The Philippine National Bureau of Investigation (NBI) would lead a thorough,exhaustive,impartial and expeditious investigation of the incident.In connection with the ongoing investigation,MECO and TECO had made arrangements to coordinate investigations by the two sides pursuant to the provisions of the bilateral agreement on mutual legal assistance signed in April that year.

(c) All relevant agencies had been instructed immediately to convene for the purpose of finding ways to prevent such unfortunate incidents from occurring in the future with the view to convening a meeting with their counterparts in Taiwan as soon as possible.

(d) MECO Chairman Amadeo R.Perez,Jr.would lead a delegation to Taiwan on 15 May 2013 to discuss the above,and pay a visit to the widow of the deceased,Mr.Hung Shih-cheng.Chairman Perez would extend condolences and an apology in person,and turn over donations received from commiserating citizens of the Philippines to the family in an outpouring of sympathy for their loss.22The Taiwan Authority of China Believes That,Although the Philippines Has Expressed Deep Regret and Apologized over the Guang Da Xing No.28 Incident,the Matter of Compensation for the Victim’s Family,As Well As Authorization,Remain Unclear,and MOFA Urges the Philippines to Provide a Concrete Response,at https://www.mofa.gov.tw/en/News_Content.aspx?n=1EADDCFD4C6EC567&sms=5B9044CF1188EE23&s=4A2D4 477D5B19F23,7 October 2014.(in Chinese)

TheTaiwanAuthority of China was extremely dissatisfied with measures taken by the government of the Philippines,listing five specific points:

(a) Regarding a“formal apology”,the Philippine government only designated the chairman of the MECO to express the regrets and apologies of the Filipino people,but did not express the regrets and apologies of the Philippine government,when the fisherman was murdered by Filipino civil servants.The Philippine government cannot eschew responsibility;

(b) In the case of“investigation and punishment”,the Philippines only promised that the National Bureau of Investigation would investigate the incident,but did not put forward a criminal complaint or administrative complaint against the person by the Ministry of Justice,nor did it mention any possible“punishment and compensation”demanded,including fines,dismissal,and imprisonment of those responsible,and financial compensation for the victim’s family;

(c) The Philippine government only wishes to compensate the victim’s family with the donation from the Philippine people,but did not mention that the Philippine government itself should take full responsibility for losses;

(d) In terms of fisheries negotiations,the Philippine government only indicated that the relevant units would immediately hold meetings and research measures to prevent such unfortunate incidents from happening,but it had not been handled as promised earlier,since the Ministry of Agriculture of the Philippines did not immediately convene relevant ministries or invite“our government”to conduct joint research;

(e) The Philippines did not authorize Representative Basilio to negotiate content in an official statement;the media was only notified by SMS in the form of a briefing the day before,which was unacceptable.23JIANG Yi-huah Announces Three Countermeasures Against the Philippines Taken Today,at http://www.ey.gov.tw/News_Content2.aspx?n=F8BAEBE9491FC830&s=FDF5EDEB 68EFE93A,7 October 2014.(in Chinese).See also Taiwan Set up a Monitoring Team for Sanctions Against the Philippine,Does Not Rule out a Third Wave of Countermeasures,at http://news.youth.cn/gn/201305/t20130516_3233478.htm,6 July 2019.(in Chinese)

TheTaiwanAuthority of China first implemented three measures of sanction,namely,freezing the applications of Filipino laborers seeking to work in Taiwan,recalling“Taiwan’s representative”stationed in the Philippines,and requesting that the representative of the Philippines stationed in Taiwan return to the Philippines to help with the proper resolution of the incident.24JIANG Yi-huah Announces Three Countermeasures Against the Philippines Taken Today,at http://www.ey.gov.tw/News_Content2.aspx?n=F8BAEBE9491FC830&s=FDF5EDEB 68EFE93A,7 October 2014.(in Chinese).See also Taiwan Set up a Monitoring Team for Sanctions Against the Philippine,Does Not Rule out a Third Wave of Countermeasures,at http://news.youth.cn/gn/201305/t20130516_3233478.htm,6 July 2019.(in Chinese)That afternoon,theTaiwanAuthority of China further implemented the following second wave of eight sanctions:25JIANG Yi-huah:Taiwan Launchs Eight More Countermeasures Against the Philippines,at http://www.ey.gov.tw/News_Content2.aspx?n=F8BAEBE9491FC830&sms=99606AC2FC D53A3A&s=8F4DD2B28312641E,7 October 2014.(in Chinese).See also Taiwan Set up a Monitoring Team for Sanctions Against the Philippine,Does Not Rule out a Third Wave of Countermeasures,at http://news.youth.cn/gn/201305/t20130516_3233478.htm,6 July 2019.(in Chinese)

(a) Issuing a travel warning that discourages the people of Taiwan from traveling to the Philippines due to the dishonest reactions of the Philippine government after the Guang Da Xing No.28 incident;

(b) The suspension of high-level meetings at the World Health Assembly;

(c) The suspension of economic exchanges,promotion,and other activities;

(d) The suspension of cooperation on agriculture and fisheries;

(e) The suspension of exchanges and cooperation on technology and research;

(f) The suspension of negotiations on air space rights;

(g) The suspension of the visa-free program for Philippine nationals;

(h) The“Ministry of National Defense”and the“Coast Guard Administration”would conduct joint maritime exercises in the southern seas.

Under strong diplomatic pressure,on 27 May 2013,theTaiwanAuthority of China and the Philippines reached a consensus on mutual legal assistance.The Taiwan investigation team set out to Manila to inspect the guns and inquire about the people involved;the Philippine investigation team also arrived in Taiwan to investigate the exhibits.On 14 June 2013,the first preparatory meeting for fisheries cooperation yielded four concrete results,with both sides guaranteeing avoidance of the use of force;the minutes of the meeting were legal documents and binding.26CHEN Zhongxian,the Phillipines Files Criminal Complaints for Homicide Against Eight PCG Personnel,at http://www.merit-times.com.tw/NewsPage.aspx?unid=315395,25 July 2019.(in Chinese)On 7 August 2013,the NBI released an investigation report,proposing to prosecute eight members of the Philippine Coast Guard (PCG) for murder;President of the Philippines would send Amadeo R.Perez,Jr.as the representative to apologize to the families of the victims.27The Philippine Court Issues an Order to Arrest Eight PCG Personnel Suspected of the Shooting Death of a Taiwan Fisherman,at http://news.youth.cn/jsxw/201404/t20140416_5036778.htm,6 July 2019.(in Chinese)

2.Legal Conflicts

On 7 August 2013,the“Ministry of Justice”of theTaiwanAuthority of China and the Department of Justice of the Philippines released their own investigation report on the incident at the same time.

The first legal conflict in the case is a conflict of jurisdiction.Both parties claim that the case occurs in their own jurisdiction and has jurisdiction over it.The Philippines believes that the incident occurred approximately 40 nautical miles from its baselines and within its 200 nautical miles EEZ;thus it has jurisdiction over it.28Balintang Channel Incident Report,at http://newsinfo.inquirer.net/460753/balintangchannel-incident-report,22 October 2014.TheTaiwanAuthority of China also believes thatGuang Da Xing No.28was in its EEZ instead of the Philippine territorial waters.29“Ministry of Justice”Addresses Guang Da Xing No.28 Shooting Incident Investigation Reports,at https://www.moj.gov.tw/cp-418-42498-b811a-095.html,11 August 2014.See also The“Ministry of Justice”to Send a Joint Investigation Team with the“Ministry of Foreign Affairs”and Other Relevant Agencies to the Philippines to Investigate the Guang Da Xing No.28 Incident,at http://www.moj.gov.tw/ct.asp?xItem=305771&ctNode=27518&mp=001,7 October 2014.(in Chinese)

The second legal conflict involved the issue of excessive use of force and the perpetrators’ criminal charge.The International Tribunal for the Law of the Sea has detailed provisions on excessive use of force in the M/V“Saiga”(No.2) Case.In accordance with the basic norms of international law,the use of force must be avoided as far as possible,where force is unavoidable,it must not go beyond what is reasonable and necessary in the circumstances.30The M/V“Saiga”(No.2) Case (Saint Vincent and the Grenadines v.Guinea),at http://www.worldcourts.com/itlos/eng/decisions/1999.07.01_Saint_Vincent_v_Guinea.pdf,7 October 2014.In theGuang Da Xing No.28incident,after many confrontations,both sides agreed upon the excessive use of force,but there were still differences in their criminal charge.TheTaiwanAuthority of China believed that it was a murder,while the Philippines insisted it was a homicide.

TheTaiwanAuthority of China believed that the Taiwan fishing vesselGuang Da Xing No.28was hotly pursued and violently attacked by the Philippine government vessel BFAR MCS-3001 in the overlapping exclusive economic zones between China and the Philippines,causing the death of a crew member,Hung Shih-cheng.The action further caused a huge damage to important equipment in the vessel such as the hull and the engine system.Since the Philippine law enforcement vessel performed official duties on behalf of the Philippine government,the later thereby should take responsibility for its wrongful acts.Violations of international law by the Philippines included avoid use of force,basic procedures on use of force,the principle of proportionality,humanity,and obligation to render assistance.31Wrongful Acts of the Philippines Against the International Law in the Guang Da Xing No.28 Incident,at https://www.mofa.gov.tw/News_Content.aspx?n=01050D952ED2BEEE&s ms=218D65026C0F1D37&s=74EB774D2C5049B0,7 October 2014.(in Chinese)After sending an investigation team to the Philippines,the Taiwan side verified that,in the investigation report released in August,on the one hand,there were 20 personnel,1 30-caliber machine gun,and 14 automatic rifles on the Philippine government vessel BFAR MCS-3001.The Taiwan fishing vessel,on the other hand,was unarmed.The Philippine government personnel were aware that the crew of the Taiwan fishing vessel might be taking cover under the deck;still,in violation of the Rules of Engagement in the Conduct of Maritime Law Enforcement Operations (ROE) — being under no imminent threat of death or serious injury,and having absolute superiority of firepower —they took aim and kept firing for 75 minutes at the vessel.All together,there were 108 bullets fired,of which 45 hitGuang Da Xing No.28,with entry points all over the hull,resulting in the death of Hung Shih-cheng.As the defendants took advantage of superior strength,a charge of murder with attendant circumstances as defined in The Revised Penal Code of the Philippines against the defendants is appropriate.

The Philippines believed that the PCG crew employed excessive use of force and committed homicide,but not murder.Firstly,in terms of use of force,the PCG crew were under no imminent threat of death or serious injury;they were thereby guilty in this case.According to Article VIII,Item d of the ROE,the use of deadly force (firearms) should be the last resort and should only be exerted in self-defense or in defense of other against the imminent threat of death or serious injury,to prevent the perpetration of a particularly serious crime involving grave threat to life,to arrest a person presenting such a danger and resisting their authority,or to prevent his or her escape,and only when less extreme means are insufficient to achieve these objectives is present.Towards this end,the principle of proportionality shall always be observed.In the case,however,the PCG crew fired more than a hundred bullets on the escaping fishing boat.It is difficult to understand such a dense gunfire for an unarmed fishing vessel.The use of force has turned into an unreasonable firing in the later stage of chasing,and is no longer a legitimate act based on the ROE.It is apparent that such a dense gunfire for an unarmed small fishing boat will not only disable the vessel,but inevitably will cause physical harm or death to the crew.

Moreover,the Philippine side held that the crime committed is not murder because of the absence of any qualifying circumstance for murder,namely,taking advantage of superior strength,evident premeditation,and treachery.They insisted no circumstance is present in this case:(a) Abuse of superior strength is not present because the PCG crew did not purposely use excessive force out of proportion to the means of defense available to the Taiwan fishermen.The firing was made intermittently and not fully taken advantage of by the PCG personnel.The force employed was mainly aimed to disable the engine and not to harm or murder the fishermen;(b) the shooting incident was unplanned and unpremeditated since the enforcement action taken by the PCG was part of their responsibility to protect Philippine territorial waters.And the use of firearms and firepower as a necessary tool in maritime law enforcement is unavoidable;(c) there was no treachery because the attack was not sudden or unexpected.The video footage taken during the incident overturned the allegations of the Taiwan fishermen that the fire was instantaneously released and without warning.There were,in fact,a reasonable number of continuous announcements made in the PA system and the blowing of horn by the PCG,which constituted sufficient warnings before the fire.32Balintang Channel Incident Report,at http://newsinfo.inquirer.net/460753/balintangchannel-incident-report,7 October 2014.

However,the assertion of there being no abuse of superior strength is unconvincing.The investigation reports from both sides on the incident demonstrate the PCG crew did employ excessive use of force deliberately and disproportionately.Guang Da Xing No.28was fleeing at high speed and the PCG crew were under no threat of death or serious injuries.It is unreasonable,under such a circumstance,to fire 108 bullets within 75 minutes,45 of which scattered all over the hull,notwithstanding the Philippine side claimed that the firing aimed to disable the engine.The abuse of superior strength,therefore,is unquestionable.

The NBI recommended the filing of criminal complaints for homicide against eight PCG personnel,and obstruction of justice against four PCG personnel.33Balintang Channel Incident Report,at http://newsinfo.inquirer.net/460753/balintangchannel-incident-report,7 October 2014.At the end of March 2014,the Philippine Department of Justice’s Special Prosecutor Group submitted relevant evidence to the local courts of the Batanes and Cagayan Province,charging eight PCG personnel with homicide,two of whom also with obstruction of justice.In April of the same year,the eight defendants submitted a petition requesting the Department of Justice to review the prosecution by the Special Prosecutor Group.34The Philippine Court Issues an Order to Arrest Eight PCG Personnel Suspected of the Shooting Death of a Taiwan Fisherman,at http://news.youth.cn/jsxw/201404/t20140416_5036778.htm,6 July 2019 (in Chinese)

C.The Capture of Chinese Fishermen on the Fishing Vessel Qiong Qionghai 09063 in 2014

On the morning of 6 May 2014,the crew of the Philippine National Police Maritime Group Special Boat,disguising themselves as fishermen on an ordinary fishing boat,35Released Fishermen:Not Poach Turtles,Disguised Philippine Police Arrest Us,at http://news.ifeng.com/a/20140516/40319513_0.shtml,7 October 2014.(in Chinese)illegally carried out an“inspection”onQiong Qionghai 09063operating in the Banyue Reef,Nansha Islands,China;discovering that there were more than 350 turtles on the boat,the Philippine police detained 11 fishermen on board and escorted them to Puerto Princesa,Philippines.36The Philippines Admits Arresting a Chinese Fishing Vessel and 11 Fishermen in the Banyue Jiao,at http://news.xinhuanet.com/world/2014-05/07/c_126473656.htm?prolongation=1,7 May 2014.(in Chinese)The Puerto Princesa City prosecutor’s office then accused the 11 Chinese fishermen of“illegal fishing”,“illegal entry”,and“smuggling rare and endangered species”.3711 Chinese Fishermen Trialed Today in the Philippines Facing a Maximum Sentence of 20 years,at http://news.qq.com/a/20140512/003566.htm?pgv_ref=aio2012&ptlang=2052,7 October 2014.(in Chinese).Art.97 of Republic Act No.8550 provides that it shall be unlawful to fish or take rare,threatened or endangered species,which shall be punished by imprisonment of twelve (12) years to twenty (20) years and/or a fine of One hundred and twenty thousand Pesos (Php 120,000.00) and forfeiture of the catch,and the cancellation of fishing permit.See Executive Order No.236 April 22,1995,at http://www.lawphil.net/executive/execord/eo1995/eo_236_1995.html,7 October 2014.The Philippine court fined the nine Chinese fishermen US$102,000 each for turtle poaching.38The Philippines Rejects Demands from China:Fine or Imprisonment,in Global Times,28 November 2014.(in Chinese)On 27 November 2014,the presidential spokesperson Sonny Coloma said that the Philippines would not release nine Chinese fishermen (two underage fishermen had then been released) until they pay their fine.39The Philippines Rejects Demands from China:Fine or Imprisonment,in Global Times,28 November 2014.(in Chinese)

This case took place about one year after the Philippines brought the case“South China Sea Arbitration”to United Nations Convention on the Law of the Sea.The Philippines made use of this case during the arbitration to accuse Chinese fishermen of large-scale fishing of endangered turtles;the Chinese government,moreover,was accused of tolerating and protecting Chinese fishing boats to capture endangered species around Huangyan Island,Ren’ai Reef and other places in the Nansha Islands,in violation of the United Nations Convention on the Law of the Sea (hereinafter the“Convention”) on protection and preservation of the marine environment.40The Republic of Philippines v.The People’s Republic of China,Award of 12 July 2016,PCA Case N° 2013-19,para.818.On 12 July 2016,the Tribunal finds that China has,through its toleration and protection of,and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species around Huangyan Island,Ren’ai Reef and other places in the Nansha Islands,breached Articles 192 and 194(5) of the Convention.41The Republic of Philippines v.The People’s Republic of China,Award of 12 July 2016,PCA Case N° 2013-19,paras.992～993.

This case,in fact,was deliberately formulated by the Philippines as evidence against China for the“South China Sea Arbitration”.By discrediting Chinese fishermen and the Chinese government,the Philippines obtains international support and favourable rulings,which are reflected in two aspects.First,the turtles onQiong Qionghai 09063were not fished by Chinese fishermen themselves,but purchased from Filipino fishermen.The fishing boat arrived at the Banyue Reef on 29 April 2014 and was detained by the Philippines on 6 May 2014.In other words,they were at the Banyue Reef for only six days.What is more,areas around the Banyue Reef are not of a high density of turtles.Under the premise of not carrying the tools such as the large nets for catching turtles,theQiong Qionghai 09063fishing boat could not have caught so many turtles,which has also been confirmed by a Philippine domestic medium.According to the Philippine GMA News Network on 8 May 2014,the Philippine Marine Police said they had consideredQiong Qionghai 09063a suspicious vessel that engaged in trades of rare turtles after receiving information from local fishing boats.42The Philippines:Capture and Detention of Chinese Fishermen Without Firing under the Suspicion of Their Purchasing Turtles,at http://www.kankanews.com/a/2014-05-09/0014727235.shtml,1 December 2016.(in Chinese)The Philippine Palawan Council for Sustainable Development has also publicly acknowledged that there is a“supply and demand system”consisting of foreign buyers and domestic suppliers-Filipinos are responsible for capturing endangered turtles,and then sell them to the Chinese in large quantities at a price of 15,000 to 30,000 Pesos each.On 11 May 2014,the Philippine Daily Inquirer quoted the officers who said that Chinese buyers do not like to be close to the Palawan coast and they prefer to meet with suppliers around Banyue Reef.43Chinese Fishermen Refuse Interrogation from the Philippines,at http://news.sina.com.cn/c/2014-05-13/025830121196.shtml,7 October 2014.(in Chinese)

Second,the aforementioned Philippine police pretended to be fishermen and took a normal fishing boat44Released Fishermen:Not Poach Turtles and Disguised Philippine Police Arrest Us,at http://news.ifeng.com/a/20140516/40319513_0.shtml,7 October 2014.(in Chinese)to conduct a so-called“boarding inspection”on theQiong Qionghai 09063fishing boat operating around Banyue Reef.This not only violates procedures of its domestic maritime law enforcement,but also that of international law enforcement.After learning that their fishing boats were selling rare turtles to foreigners,the Philippine police targetedQiong Qionghai 09063;disguising themselves and their enforcement vessel is,in nature,an entrapment by the Philippine law enforcement agent.The Philippine government,furthermore,made use of the case to accuse the Chinese government of tolerating and protecting Chinese fishing vessels to capture endangered species in Huangyan Island,Ren’ai Reef and other places in the Nansha Islands,in violation of the Convention on protection and preservation of the marine environment.In a word,the Philippines entrapped Chinese fishermen on theQiong Qionghai09063fishing vessel for turtles fished by Filipinos in order to defame China in the“South China Sea Arbitration”.

D.Summary

Fisheries conflicts in disputed waters are both legal and political issues,usually involving three aspects,namely,jurisdictional disputes,the use of force during the marine fisheries law enforcement,and marine environmental protection.In jurisdiction disputes,first,all States to the dispute claim their jurisdiction and deny claims of the other State.Second,as to the use of force during law enforcement,the officers of“enforcement”are prone to excessive use of force due to the instigated national sentiment and the lack of international rules for conflicts in the disputed waters.Third,since the protection of the marine environment has become a global concern,through accusing the other State of its violation of the marine law on protecting and preserving the environment,one State to the dispute contrives to justify its own right with international support.In addition,in respect of the law applicable to fisheries conflicts in disputed waters,both States,based on its own domestic and international laws,try to demonstrate the legitimacy and illegality of the relevant acts,evading the domestic law of its counterpart.

Politics,as shown in the aforementioned cases,plays a very important role in fisheries conflicts and sometimes even affects the resolution of these conflicts.For example,because of his denial of jurisdiction over the case ofPeople of the Philippines v.Chia Say Chaw,et al.in 1997,Judge Ubiadas was publicly condemned by Secretary General Domingo Siazon,and was even requested to amend his order;in 2013,theGuang Da Xing No.28incident triggered a serious diplomatic conflict between theTaiwanauthority of China and the Philippines.Under tremendous political pressure,the Philippine government and theTaiwanAuthority of China released their own investigation report on the exact same day,announcing that the Philippine perpetrators were punished according to the law of their State.The two sides subsequently established a cooperation mechanism for maritime law enforcement,a notification mechanism,and a prompt release mechanism.451st Preparatory Meeting on Taiwan-Philippines Fisheries Cooperation,at http://www.mofa.gov.tw/official/Home/Detail/3fd68774-e6c3-490c-b5e2-70083af3b575?arfid=4bbc7e7e-52f7-4fac-8d65-ab1463c2135e&opno=27e1968b-caee-47b7-8fe5-2f834a80a500,15 June 2013.(in Chinese)Through the case involvingQiong Qionghai 09063fishing vessel,moreover,where Philippine fishermen sold turtles to Chinese fishermen resulting in the Philippines police illegal detention of the fishing boat and its crew by entrapment,the evidence for the“South China Sea Arbitration”favourable for the Philippine side was successfully cooked;after the ruling,China explicitly stated that it will not accept the result.

These cases show that political intervention will lead to escalation of conflicts,and should be, avoided as much as possible.Fisheries disputes in the disputed areas cannot be resolved by pure legal methods.Coordinating the differences between China and the Philippines through legal cooperation will help avoid this impact and promote the settlement of fisheries conflicts in disputed waters.

III.Bilateral Cooperation:Solution to Fisheries Conflicts Between China and the Philippines

The relations between China and the Philippines have been improved since Rodrigo Roa Duterte took office,laying a sound foundation for cooperation.Duterte’s visit to China in October 2016 marked a comprehensive recovery of the friendly relations between the two sides.During the visit,China and the Philippines signed 13 bilateral cooperation documents and issued the“Joint Statement of the People’s Republic of China and the Republic of the Philippines”.Tensions between China and the Philippines,caused by fisheries conflicts,have begun to ease by virtue of the improvement of their relations.The fishing vesselMin Ping Yu No.63168incident is a case in point.The fishing vesselMin Ping Yu No.63168and the fishermen on board were detained by the Philippines in April 2013 under accusation of stranding at the Tubbataha Reefs Natural Park,a protected area of the Philippines.In December 2016,the Philippine Court of Appeals overturned the judgment made by Chamber No.51 in the Princesa City,Palawan province on 5 August 2014 on the grounds that the Philippine prosecutor failed to establish that the 12 Chinese fishermen on the ship were guilty.The court,therefore,announced that the 12 fishermen were not guilty and ordered to release them immediately and return the confiscated items. Eventually,the fishermen on board,which had been detained for more than three years,were released.46The Philippine Court of Appeals Decides to Release 12 Chinese Fishermen Who Sentenced to 6-12 Years in Prison for Illegal Fishing,at http://www.yidianzixun.com/article/0F7JLCta?s=1&appid=yidian&ver=3.8.0&utk=4ajynb39,5 December 2016.(in Chinese)

China and the Philippines can work together in the following four aspects to help in resolving fisheries conflicts in the disputed waters.

1.China and the Philippines Should Make Specialized Arrangements for Fishery Production and Maritime Supervision in the Disputed Waters

The South China Sea,with a large area,boasts of a rich variety of ecotypes.Marine fishery resources such as fish,shrimp,shellfish and algae are abundant in the SCS.According to estimates by relevant experts,the potential catch of fishery resources in the SCS region is about 2.46-2.81 million tons.In which,fisheries in the Northern continental shelf of SCS (477,600 km2) accounts for 1.2-1.21 million tons,fisheries in the Beibu Gulf (164,000 km2) 600-700 thousand tons,fisheries in the Xisha and Zhongsha Islands (210,000 km2) 230-240 thousand tons,and the Nansha fisheries (710,000 km2) 420-560 thousand tons.47ZHOU Yongcan,Fishery Resources in the South China Sea and Its Sustainable Development and Utilization,Beijing Forum (2014):The Harmony of Civilization and Prosperity for All-China and the World:Tradition,Reality and Future,p.2.(in Chinese)The seas around the SCS Islands serve as the main area for fishery resources in the SCS region.According toThe Fishes of the Islands in the South China Sea,there are 521 species of fish in this area,which can be divided into oceanodromous fishes and demersal reef fishes based on their ecological features.And oceanodromous fishes mainly include Thunnus albacares,Acanthocybium solandri,Xiphias gladius,Katsuwonus pelamis,Istiompax indica,Makairamazara,Prionaceglauca,Sailfish,Barred marlin,Isurusoxyrinchus,Carcharhinuslimbatus,Stingray,Alepisaurus ferox,Paralepididae,Gempylidae,etc.48ZHOU Yongcan,Fishery Resources in the South China Sea and Its Sustainable Development and Utilization,Beijing Forum (2014):The Harmony of Civilization and Prosperity for All-China and the World:Tradition,Reality and Future,p.2.(in Chinese)The protection and preservation of these oceanodromous fishes relies on cooperation between China and the Philippines.In accordance with Article 63 of the United Nations Convention on the Law of the Sea,49Art.63 of the United Nations Convention on the Law of the Sea:Stocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it.1.Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States,these States shall seek,either directly or through appropriate subregional or regional organizations,to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.2.Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone,the coastal State and the States fishing for such stocks in the adjacent area shall seek,either directly or through appropriate subregional or regional organizations,to agree upon the measures necessary for the conservation of these stocks in the adjacent area.China and the Philippines need to cooperate and try to reach an agreement on the necessary measures to carry out specialized arrangements for fishery production and maritime supervision.By doing so,the conservation and development of these migratory fishes could be guaranteed.

2.China and the Philippines Should Set up Principles and Mechanisms Such as“Avoiding the Use of Violence or Unnecessary Force”“Shared Procedures on Maritime Law Enforcement”“Establishment of an Emergency Notification System”and“Establishment of a Prompt Release Mechanism”

We could absorb from the arrangements made by theTaiwanauthority of China and the Philippine government in the case of the fishing boatGuang Da Xing No.28when it comes to establisshing specific mechanism for resolving fisheries conflicts in the disputed waters.On 14 June 2013,theTaiwanauthority of China and the Philippines held the first preparatory meeting of the“Taiwan-Philippines Fisheries Talks”in Manila.Hence,productive achievements were made during the meeting.The two sides agreed to set up mechanisms for cooperation on maritime law enforcement,for an emergency notification system,and a prompt release mechanism for fishing vessels and crew.With these mechanisms in hand,fishing vessels and crew from either side could avoid being pursued,boarded,inspected,arrested and detained by the official vessels on the other side that misunderstood the fishing vessels crossing the border.On the mechanism for cooperation on maritime law enforcement,theTaiwanAuthority of China and the Philippines should notify each other the enforcement procedures.And the law enforcement ships on the two sides shall not resort to force or violence against each other’s fishing vessels in the future.As to the mechanism for an emergency notification system,when the fishing vessel of either side is arrested,the government of the fishing vessel will quickly get informed by its counterpart on the other side so as to assist the arrested fishing vessel.On the mechanism of prompt releasing of fishing vessels and crew,when a fishing vessel is detained by the official vessel from the other side,the detaining government shall release the detained fishing vessel and crew as soon as possible in accordance with international practice.501st Preparatory Meeting on Taiwan-Philippines Fisheries Cooperation,at http://www.mofa.gov.tw/official/Home/Detail/3fd68774-e6c3-490c-b5e2-70083af3b575?arfid=4bbc7e7e-52f7-4fac-8d65-ab1463c2135e&opno=27e1968b-caee-47b7-8fe5-2f834a80a500,15 June 2013.(in Chinese)

The above-mentioned mechanisms reached by theTaiwanAuthority of China and the Philippines could promote cooperation between the two parties to a higher level,and prevent the other party to the dispute from resorting to excessive use of force during maritime law enforcement.The establishment of these mechanisms also contributes to promptly releasing the detained fishing vessels and the fishermen on board.The legitimate rights and interests of fishermen,in this way,could be guaranteed.As the relations between China and the Philippines improved,relevant fisheries authorities from the two sides could discuss how to set up the above-mentioned mechanisms applied by theTaiwanAuthority of China and the Philippines,namely,“avoiding the use of violence or unnecessary force”,“shared procedures on maritime law enforcement”,“establishment of an emergency notification system”and“establishment of a prompt release mechanism”.

3.China and the Philippines Shall Speed up the Building of Non-governmental Organizations That Aim to Resolve Fisheries Conflicts in the Disputed Waters

Building up non-governmental organizations is a well-considered approach of solving fisheries conflicts,for it takes the special circumstances of the two sides into account.It is feasible to set up non-governmental organizations dealing with fisheries conflicts in the disputed waters where fisheries conflicts and even fishermen on one side being detained by the other happen a lot.There are differences among States in languages,legal systems and judicial systems;therefore,it is necessary to establish a specialized non-governmental organization in order to deal with fisheries conflicts when situations mentioned above occur.This non-governmental organization (a fair third-party role) is conducive to avoiding political intervention,promoting Sino-Philippine fisheries cooperation and facilitating fisheries conflicts to be resolved.And ultimately,with this,the goal of sustainable use and joint conservation of fishery resources in the SCS can be achieved.51The Team of Xiamen University South China Sea Institute (FU Kuen-chen,JIANG Wei,DENG Yuncheng,XU Peng,LIN Zhen and CHANG Hong),Report on the Handling of the Case of the Detained Fishing Boat Min Ping Yu No.63168 in the Philippines,August 2014.There have been precedents in the history of fisheries disputes resolved by non-governmental organizations.The change of fishery relations between Japan and China before and after the 1970s is a well-grounded example.In the early 1950s,driven by the fishery expansion policy made by the Japanese Yoshida government,a large number of Japanese fishing boats entered and illegally fished in the coastal fishing grounds of China,resulting in a tense state of fisheries relations between the two States.In order to resolve the dispute,China established the China Fisheries Association.This Association signed several non-governmental fisheries agreements with the Japan’s Japan-China Fisheries Association and properly handled the fisheries issues between the two States.52TIAN Chengshan,Promoting the Friendly Development of Fisheries Relations Between China and Japan -an Early Work Review of China Fisheries Association,China Fisheries,No.10,2004,p.21.(in Chinese)

4.China and the Philippines Should Strengthen Fisheries Cooperation to Improve Their Supervision and Management on IUU Fishing

Philippine fishermen fished endangered animals in the SCS and sold them to Chinese fishermen.Such behavior by fishermen in both States would cause huge damage to the marine environment of the SCS,going against the goal of the protection and preservation of marine living resources.In March 2001,the Fisheries Commission of the Food and Agriculture Organization of the United Nations adopted the International Plan of Action to Prevent,Deter and Eliminate Illegal,Unreported and Unregulated Fishing.IUU Fishing is clearly defined in this plan.53International Plan of Action-IUU,at http://www.fao.org/docrep/005/Y3536E/y3536e04.htm,1 December 2017.It is also one of the biggest threats to marine biodiversity and sustainable fishing.The annual catch of IUU fishing is between 11 million and 26 million tonnes,accounting for up to 30% of the total global catch,seriously affecting global fisheries development.54The definition of IUU fishing:(1) Illegal fishing refers to fishing activities:(a) conducted by national or foreign vessels in waters under the jurisdiction of a State,without the permission of that State,or in contravention of its laws and regulations;(b) conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound,or relevant provisions of the applicable international law;or (c) in violation of national laws or international obligations,including those undertaken by cooperating States to a relevant regional fisheries management organization.(2) Unreported fishing refers to fishing activities:(a) which have not been reported,or have been misreported,to the relevant national authority,in contravention of national laws and regulations;or (b) undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported,in contravention of the reporting procedures of that organization.(3) Unregulated fishing refers to fishing activities:(a) in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality,or by those flying the flag of a State not party to that organization,or by a fishing entity,in a manner that is not consistent with or contravenes the conservation and management measures of that organization;or (b) in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.Combating IUU fishing in the Caribbean through policy and legislation,at http://www.fao.org/3/a-i5291e.pdf.cx,1 December 2017.Its destructive damage to international fishery resources has been witnessed by the international community,which makes combating IUU fishing a very important international obligation of all States.Therefore,China and the Philippines should collaborate with each other to strengthen supervision and management of fishing vessels in the two States.