Challenges for Chinese Fishermen to Fish in the North Pacific and Their Legal Solutions

SHI Yubing LIU Ningwen SHEN Changchun

Abstract: The North Pacific waters include not only the traditional coastal fishing grounds of China, but also the primary high seas fishing grounds and the exclusive economic zones of other States where Chinese fishermen carry out distant fisheries activities. However, in recent years, when undertaking fishing activities in the North Pacific, Chinese fishermen encountered increasing disputes and challenges. These challenges include both external ones brought by the strengthening of fisheries resource management by regional fisheries management organizations and coastal States, and domestic ones caused by the insuきciency of China "s legal fisheries framework and the distant-water fishery industry itself. In response to these challenges, China should direct more eあorts into legislation, law enforcement, international legal negotiations and cooperation, legal publicity and education and other aspects.

Key Words: Distant-water fisheries; North Pacific; Fisheries management;Fisherman; Legal solution

I. Introduction of the Research Question

The North Pacific is the portion of the Pacific Ocean on the north of the equator. Due to the intersection of cold and warm currents in this area and its unique oceanic and geographic conditions, this area is rich in fisheries resources.1CHEN Xinjun, LU Huajie, LIU Bilin and TIAN Siquan, Current Exploitation of Marine Soft Fish Resources and Some Scientific Issues in the Sustainable Utilization of Ommastrephidae, Journal of Shanghai Ocean University, No. 5, 2012, pp. 831～840. (in Chinese)According to a report of the Food and Agriculture Organization of the United Nations (FAO), the Northwest Pacific is the most productive area for capture fisheries in the world.2FAO, The State of World Fisheries and Aquaculture 2016, p. 5.The North Pacific is one of the primary fishing areas for Chinese fishermen, which includes traditional fishing grounds where Chinese fishermen conduct coastal fishery activities, such as the East China Sea, the Yellow Sea and the northern fishing area of the South China Sea. Some high seas fishing grounds, and the exclusive economic zones (EEZs) of certain major States like Japan, Russia, South Korea and the United States where Chinese fishermen engage in distant-water fisheries are also part of the North Pacific.

“Distant-water fisheries” means “marine fishing, the associated fishery processing, supply and product transportation and other fishery activities” carried out by citizens, legal persons or any other entities of a State “on the high seas and in the sea areas under the jurisdiction of any other States”.3Provisions on the Management of Distant-Water Fisheries (issued by the Ministry of Agriculture of the People "s Republic of China in April 2003), Article 2. As per this article,“distant fisheries” as mentioned in the Provisions shall exclude fishery activities carried out by Chinese fishermen in the Yellow Sea, the East China Sea and the South China Sea.Distant-water fishing is a strategic industry in China, therefore it is essential to encourage its development,which will not only guarantee the provision of domestic products and facilitate the cooperation between Chinese and foreign fishery enterprises, but also contribute to the protection of China "s marine rights and interests. Moreover, its development is an important component of the “21st Century Maritime Silk Road Initiative”.413th Five-year Plan for National Distant-Water Fisheries Development by the Ministry of Agriculture of the People "s Republic of China.Chinese distant water fishing activities started in 1985. Large fishing trawlers with processing facilities owned by Chinese fisheries companies conducted, in 1986,fishing operations in the waters off Alaska, the United States, in addition to West African waters.5Ministry of Agriculture of the People "s Republic of China ed., A Chronicle of China "s Distant Fisheries for Thirty Years (1985-2015), China Fisheries, No. 3, 2015, p. 19. (in Chinese)After more than three decades of development, both the number of China "s oceanic fishing vessels and the output of its distant-water fishing industry are among the highest in the world.6The overall size of China "s ocean-going fl eet and the output of its distant-water fisheries have greatly exceeded those of some developed economies and traditional fishing powers,such as the European Union and the United States. China "s Distant Fisheries Are Growing Stronger, at http://news.qq.com/cross/20161114/V59I7L2P.html, 25 April 2018. (in Chinese)Fishery activities of Chinese fishermen can be spotted across the Pacific, the Indian Ocean and the Atlantic Ocean. And the North Pacific, particularly the North Pacific high seas and EEZs of Russia, has become one of the primary sea areas where Chinese fishermen, especially those from Fujian province, carry out distant-water fisheries activities.7TANG Fenghua, YUE Dongdong, XIONG Minsi, LI Linian and CUI Xuesen, Interpretation of Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean and Coping Strategies from China Oceanic Fisheries, Fishery Information and Strategy, No. 3, 2016, p. 211. (in Chinese)Chinese fishermen use various methods to fish in the North Pacific. For example, they catch ommastrephe bartrami by using squid lure light, fish for mackerel by light-purse seine, and saury by light stick-held dip net.8TANG Fenghua, YUE Dongdong, XIONG Minsi, LI Linian and CUI Xuesen, Interpretation of Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean and Coping Strategies from China Oceanic Fisheries, Fishery Information and Strategy, No. 3, 2016, p. 211 (in Chinese); LE Jiahua, CHEN Xinjun and WANG Weijiang, Development Status and Trend of China "s Distant Fisheries, World Agriculture, No. 7, 2016, pp. 226～227. (in Chinese)China "s 13th Five-Year Plan for National Distant-Water Fisheries Development, issued by the Ministry of Agriculture in December,2017, states that “the ‘13th Five-Year Plan " period is a critical transition period for the development of China "s distant-water fisheries, and also a golden opportunity for China to become a distant-water fishing power.” China has become one of the largest distant-water fishing State; however, compared to the developed fishing States like Japan and the United States, China is still poor or insuきcient in terms of pertinent systems and mechanisms, equipment of fishing vessels, scientific and technological level, corporate strength, and crew training, which has also hampered the healthy development of Chinese distant fisheries.

With respect to coastal fisheries, Chinese fishermen, when fishing in the waters specified in the agreement between China and Japan, or between China and South Korea, met growing challenges in recent years. Chinese fishermen and fishing vessels were seized, from time to time, by Japanese or South Korean law enforcement oきcers. Against this backdrop, this paper will discuss not only the distant fisheries of China where fishing activities are carried out on the North Pacific high seas or in the North Pacific waters under the jurisdiction of other States, but also coastal fisheries undertaken by Chinese fishermen in North Pacific waters, mainly in the areas specified in the agreements between China and Japan,and between China and South Korea.

The world has witnessed increasingly strict regional fishery management,with the international community becoming more aware of the importance of environmental resources protection. In this case, it is urgent to solve the following issues: how to respond to the significant changes of international marine fisheries management, and transform the traditional development mode of China "s coastal and distant fisheries, and further to achieve the goal of turning China into a“fishing power”? On international law, a “fishing power” should naturally be a responsible fishing State, which requires that China, of its own free will abide by the international law, including international fisheries laws, and fulfill relevant international obligations. Based on this concept, the paper, taking the North Pacific waters as an example, analyses the legal system applicable to the coastal and distant-water fishing operations carried out by Chinese fishermen in this area and the challenges they met, and tries to explore the potential solutions to these challenges from a legal perspective.

II. The Legal Framework Applicable to the Fishing Activities by Chinese Fishermen in the North Pacific

The legal framework applicable to the fishing operations conducted by Chinese fishermen in the North Pacific includes three levels: the multilateral level (i.e., global and regional legal instruments), the bilateral level (i.e., bilateral agreements) and the domestic level (i.e., domestic laws of the relevant States and legal documents of China) (see Fig. 1).

A. Multilateral Level

Since the conclusion of the United Nations Convention on the Law of the Sea(UNCLOS) in 1982, most States in the world have declared 200 nautical miles of EEZs or exclusive fishing zones, and exercised exclusive jurisdiction over fishery resources in these zones. As a result, some fl eets of the distant-water fishing States were forced to fish on the high seas. With the gradual depletion of coastal fishery resources, the high seas have become a highly contested arena for fishermen from all over the world, where overfishing has led to a rapid decline of the high seas fishery resources. Since then, a growing call for “responsible fisheries” emerged.In this context, under the efforts of major international fishery organizations, an array of global and regional conventions and international fisheries instruments of a soft law nature were drafted. So far, a standard system of international fisheries management has been established. With the UNCLOS as the core, the system is supported by other international or regional conventions, and supplemented by international fisheries documents of a soft law nature. And international fishery organizations are responsible for its implementation.9BAI Yang, Analysis and Prospect of the Legal Regime on International Marine Fishery Resources in the Post-UNCLOS Era, Journal of Henan University of Economics and Law,No. 5, 2012, p. 120. (in Chinese)

The UNCLOS lays the foundation for the establishment of the modern fisheries resources conservation regime. Specifically, it established the yield control management approach, and provided for diあerent regimes for the conservation and management of fisheries resources in different sea areas, such as the provisions concerning the remainder of the allowable catch in the EEZ, and the freedom of fishing on the high seas and its restrictions; and it also made clear that States Parties have a cooperative obligation to conserve and manage marine living resources within or beyond national jurisdiction.10Yield control is the restraint placed on the level of yield of a fishing vessel or a fishing unit(such as an individual fisherman or a company) per voyage or within a specific period of time. Relevant yield control measures are Individual Transferable Quota (ITQ) system,Individual Quota (IQ) system, Total Allowable Catch (ITQ) system and other yield control systems. BAI Yang, Analysis and Prospect of the Legal Regime on International Marine Fishery Resources in the Post-UNCLOS Era, Journal of Henan University of Economics and Law, No. 5, 2012, pp. 119～120. (in Chinese)However, the UNCLOS is still insuきcient in many aspects including the arrangement of specific regimes and implementation capacity. In order to fill in these gaps, the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (hereinafter “Compliance Agreement”) was concluded in 1993. The agreement reinforced the flag State responsibility for management, established a regime of high seas fishing permit and registration and tightened regulations on the management of fishing vessels and the punishment of vessels committing illegal activities. The 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, hereinafter referred to as the FSA, granted the non-flag States compulsory jurisdiction over fishing vessels on the high seas (even the right to use force, if necessary). The FSA also expanded the jurisdiction of the regional fisheries organizations or arrangements, since it provides that only those States which are members of such an organization or participants in such an arrangement,or which agree to apply the conservation and management measures established by such an organization or arrangement, shall engage in the fishing operations compatible with those measures in the region or subregion.11HU Xuedong, Study on the Management System of High Seas Living Resources (Doctoral Dissertation), Qingdao: Ocean University of China, 2012, pp. 84～99. (in Chinese)

A number of international fishery instruments that are not legally binding have also been adopted, which impose higher requirements and more obligations on fishers operating on the high seas. Among them, the 1995 Code of Conduct for Responsible Fisheries, covering all aspects of “responsible fisheries”, plays a leading role. Since its adoption, global and regional organizations and most maritime States have taken measures to promote its implementation.12HU Xuedong, Study on the Management System of High Seas Living Resources (Doctoral Dissertation), Qingdao: Ocean University of China, 2012, p. 88. (in Chinese)In addition,for the purpose of promoting the implementation of the Code, the FAO drafted a series of international plans of action, involving, among others, the conservation and management of seabirds and sharks, and the management of fishing capacity and illegal, unreported and unregulated fishing (IUU fishing).

Regional fisheries management organizations (RFMOs) have also been established, in accordance with regional conventions, in the North Pacific to better conserve and manage the fisheries in the region. China has acceded to the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (hereinafter the “Antigua Convention”) and the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean. The Antigua Convention focuses on the conservation and management of tuna and tuna-like species in the Northeast Pacific Ocean, and the latter convention covers the chief species that Chinese fishermen catch in the North Pacific. Both conventions are concrete steps taken to implement the UNCLOS,the FSA, the Code of Conduct for Responsible Fisheries and the associated international plans of action. The Ministry of Agriculture of China, in line with the stipulations on fishing vessel registration, data reporting, high seas boarding and inspection, vessel location monitoring, and other management measures set out in the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, promulgated a normative document, aiming to urge the relevant entities to comply with the convention.

B. Bilateral Level

In regard to China "s coastal waters, the Sino-Japanese and the Sino-Korean Fisheries Agreements, as “temporary arrangements” before the conclusion of delimitation agreements, have become important norms for Chinese fishermen to abide by when fishing in the Yellow Sea and East China Sea. The Agreement of Fisheries Between the Government of the People "s Republic of China and the Government of Japan, signed in 1997, came into force in 2000. The agreement is valid for five years, and has been renewed until now. The agreement applies to both the EEZs of China and Japan, including the “Provisional Waters Zone” where joint conservation and management measures are taken, and the EEZ of Japan in North Pacific. China also signed a fisheries agreement with South Korea in 2000, which took effect in 2001. Similar to the agreement with Japan, this agreement is also valid for five years, and has been renewed until now. The scope of the agreement covers the EEZs of China and South Korea, including the “Provisional Waters Zone” where joint conservation and management measures are applicable, the“waters in transitional arrangement” where fisheries activities should be gradually reduced and the “waters where existing fishing activities would be maintained”.The Ministry of Agriculture of China annually enacted normative documents regarding the implementation of the foregoing bilateral agreements, which cover,among others, fishing quotas, the number of licensed vessels, standards of fishing gear and equipment, operating hours and areas, and law enforcement cooperation in the agreed waters.

C. Unilateral Level

The legal framework, at the unilateral level, encompasses the domestic laws of the major States bordering the North Pacific and those of China. The former mainly governs the fishing operations of foreign fishing vessels in the EEZ of a State.Where a bilateral fisheries agreement fails to specify or the relevant provisions are unclear, the pertinent provisions of the domestic laws of the State with jurisdiction over the operating waters should prevail. Such provisions consist of the articles concerning prohibited actions, law enforcement procedures, and penalty method and standard under the Act on the Exercise of the Sovereign Right for Fishery, etc.in the Exclusive Economic Zone, the Act on Foreign Fisheries and Federal Act on the Exclusive Economic Zone of the Russian Federation. For example, the Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone of Japan provides that, foreign vessels shall not fish in the EEZ of Japan,unless permitted by the Ministry of Agriculture, Forestry and Fisheries,13Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone, Article 5.and these vessels shall pay the fishing fee as provided;14Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone, Article 7.the fishery operations shall be conducted in line with the international rules and other relevant provisions, and the harvest of aquatic animals and plants shall not exceed the limit provided for in the Ordinance of the Ministry of Agriculture, Forestry and Fisheries;15Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone, Article 6.foreign vessels,if intending to harvest aquatic animals and plants for experiment and research purposes, to engage in activities incidental to fishing, or to do some surveys, shall obtain the authorization from the Ministry of Agriculture, Forestry and Fisheries,and pay the service charges;16Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone, Articles 8～10.in case of other-than serious violation of the relevant provisions, the license of the offender may be cancelled, the catches and fishing gear of the oあender may be confiscated, and/or the oあender may be fined; in case of serious violation, the oあender may even be sentenced to jail in accordance with Japan "s criminal law.17Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone, Articles 13, 18～23.South Korea has developed similar rules regulating foreign vessels fishing in its EEZ, with sanctions against oあenders being severe.18QUAN Yongbo, International Fisheries Regime and the Development of China "s Coastal Fisheries, Ocean Development and Management, No. 4, 2002, p. 74. (in Chinese)

After years of development, a legal system for distant-water fishery has basically been in place in China. With the Provisions on the Management of Distant-Water Fisheries as the core, and the Fisheries Law of the People "s Republic of China and the Detailed Rules for the Implementation of the Fisheries Law playing the overriding role, this system is complemented by other administrative regulations, departmental rules and normative documents. Notably, the Fisheries Law of China provides that the State shall “encourage and support the development of distant-water fishery industry”, implement fishing license system, and impose penalties on any illegal operations.19Fisheries Law of the People "s Republic of China, Article 21, Articles 23～26, Chapter V.The Detailed Rules for the Implementation of the Fisheries Law contains more specific provisions on the fishing license system,relevant administrative authorities and penalties against illegal activities than the Fisheries Law. The Provisions on the Management of Distant-Water Fisheries established three mechanisms, namely, (a) the mechanism on the examination and approval of oceanic fisheries projects as well as on the qualification accreditation of distant-water fishing enterprises, (b) the mechanism on the confirmation of annual examination of oceanic fisheries projects and the renewal of certificates upon annual qualification examination of distant-water fishing enterprises, and (c)the self-regulatory coordination mechanism of the distant-water fishery industry. In the meanwhile, the Provisions also strengthened supervision on distant fisheries, by imposing specific requirements on matters such as monitoring and control of fishing vessel position, standard fishing logs, government observers, and legal fishing certificates.20ZHU Jiangeng, China "s Legal System for Marine Environmental Protection, Beijing: China University of Political Science and Law Press, 2016, pp. 134～135. (in Chinese)The Interim Management Measures for the Monitoring of the Position of Ocean-Going Fishing Vessels issued in 2012 details on the installation of vessel position monitoring equipment, the organization in charge of daily monitoring,the authority in charge of supervision, and other aspects relating to the supervision and management system. Additionally, there are also special regulations governing issues like the registration and inspection of ocean-going vessels.

III. Challenges for Chinese Fishermen to Fish in the North Pacific

At present, Chinese fishermen and fishery companies are confronted with many challenges both home and abroad in their fishing activities in the North Pacific. These challenges are accompanied by issues like the increase of the cost of fishery activities, the ineきciency of fishing operations and the frequent violation of applicable laws. All these factors limit the sustainable development of China "s fishing operations in the North Pacific Ocean.

A. Regional Fisheries Management Organizations Have Become Tougher in the Management of High Seas Fisheries

After the entry into force of the UNCLOS, all countries around the world have paid closer attention to the conservation and management of fishery resources, and have tightened regulation on the fishing operations on the high seas.Inter alia, the adoption of the FSA and the Code of Conduct for Responsible Fisheries marks the end of the era of free fishing on the high seas, and the rising trend of responsible fisheries for future international fishery management. Although China has not yet ratified the FSA and the Compliance Agreement, China, as a large distant-water fishing State facing international political and diplomatic pressures, has always been striving to develop its distant-water fisheries and strengthen the control over fishing vessels on the high seas in accordance with the provisions under these agreements. In addition, China has joined the Inter-American Tropical Tuna Commission and the North Pacific Fisheries Commission. These RFMOs basically formulate or modify rules of regional fisheries management in compliance with the provisions of international legal instruments, as represented by the FSA and the Code of Conduct for Responsible Fisheries. Therefore, the provisions of these instruments will be considerably binding on fishery authorities of China at all levels, as well as China "s ocean-going fishing companies and fishermen.

Chinese fishermen mainly catch straddling fish stocks and highly migratory fish stocks in the North Pacific high seas. Tougher management of international distant-water fisheries poses a more rigorous test to the production and operation of tuna and squid jigging fisheries in China. For example, the Antigua Convention enacted a licensing and permit regime for the fishing activities of ocean-going fishing vessels,21Antigua Convention, Article 20.requiring the Inter-American Tropical Tuna Commission to develop criteria for the allocation of total allowable catch, or total allowable fishing capacity, including carrying capacity, or the level of fishing eあort.22Antigua Convention, Article 7.Such requirements forced the fishermen engaging in tuna fishing on North Pacific highseas to reduce their fishing intensity, and some fishermen even had to abandon tuna fishing in this area, thus undermining the economic benefits of relevant enterprises or fishermen. Another example in this case is the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean.This Convention provides that a fishing vessel operating in the Convention Area should have real-time satellite position-fixing transmitters installed and report its plan to enter into and exit from the Convention Area to the Commission using these transmitters. It also stipulates that each Contracting Party shall place observers on board fishing vessels entitled to fly its flag and ensure such vessels accept boarding by duly authorized inspectors and their inspection.23Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, Article 7.These provisions not only increased the responsibilities of the fl ag State for the management of the vessels flying its flag on the high seas, but also added additional obligations to distant-water fishing companies and fishermen operating on the North Pacific high seas.Inter alia, they increased the risk of violations and the resulting costs for undertrained fishermen.

B. Coastal States Have Strengthened Fishery Management and Law Enforcement in Their EEZs

Under the pressure of worldwide overfishing in the EEZs, coastal States around the North Pacific Ocean have tightened their regulation on foreign ships gaining access to their EEZs. These zones cover both the important destinations of China "s distant-water fisheries sector, such as Russia "s EEZ, and China "s coastal fishing grounds, such as the agreed fishing zones under China "s fishing agreements with Japan and South Korea.

Currently, fishery cooperation between China and Russia has not been large in scale, but Chinese fishermen operating in Russia "s EEZs should abide by Russian laws and regulations with respect to fishing activities in EEZs. Russia "s laws concerning EEZs are very strict and detailed with regard to the relevant obligations of foreign fishing vessels. For example, foreign fishing vessels shall perform the duty of notification or reporting to Russia "s competent law enforcement agencies, and shall provide law enforcement oきcers with living, accommodation,communication and transportation free of charge during their stay on board the ships.

Since the Sino-Japanese Fisheries Agreement entered into force, fishing methods has been restricted to trawling and squid jigging only. Additionally, in order to limit the fishing operations of Chinese fishermen, Japan has increased law enforcement eあorts to curb the harvesting of fishing resources in the Provisional Waters Zone, which objectively puts Chinese fishermen under considerable pressure. The total number of Chinese fishing vessels operating in the Provisional Waters Zone, consequently, shows a downward trend.

South Korea has abundant fishery resources in its EEZ, where fishery disputes occur frequently. These disputes are closely related to the Korean government "s continuous strengthening of foreign fishing vessel management. First, upon the entry into force of the Sino-Korean Fisheries Agreement, the two parties designated“waters in transitional arrangements” valid for four years, during which one party shall gradually adjust and reduce the fishing activities of its nationals and fishing vessels in such waters on the side of the other party. After the expiry of the fouryear term (i.e., 30 June 2005), the “waters in transitional arrangements” on both sides of the two parties should be managed in the same way as their respective EEZs. In that case, both the areas to which Chinese fishing vessels can gain access and the number of operating vessels are further reduced.24GAO Qiang, WANG Benbing and YANG Tao, Impacts of International Marine Laws on Distant Water Fisheries in China, Chinese Fisheries Economics, No. 6, 2008, p. 81. (in Chinese)Second, South Korea revised the Procedures and Rules for the Citizens and Fishing Vessels of the People "s Republic of China to Fish in the Exclusive Economic Zone of the Republic of Korea under the Jurisdiction of the Republic of Korea in 2013, which set strict standards for fishing and complicated conditions and procedures for fishing operations by setting provisions on “designated forbidden zones”, “designated waters”, tonnage of fishing vessels, mesh size, illumination of fish gathering lamps and others. Finally,the South Korean coast guard has stepped up its efforts to enforce fisheries law against Chinese fishermen. As South Korea tightens fishing permit issuance for Chinese fishing vessels to operate in waters in transitional arrangements on the South Korean side, the number of illegal fishing by Chinese fishermen in Korean waters has increased. The South Korean coast guard has adopted tougher law enforcement measures against such illegal operations, including increasing onboard inspections of Chinese fishing vessels, requiring Chinese vessels to report their output and positions at all times, and imposing a fine up to 70 million Won(about 392,000 yuan) for each illegal catch. In order to avoid punishment, some Chinese fishermen even bribed the coast guard, which added to their financial burdens.25Media Say No Fish Could Be Caught off the Coast of Eastern China So That Chinese Fishermen Go Fishing in South Korea, at http://news.sina.com.cn/c/2011-12-12/165723619335.shtml, 1 February 2018 (in Chinese); 50 Chinese fishing vessels have been detained by South Korean Incheon coast guard since 2016 over suspected illegal fishing activities, with more than 70 crew members arrested and fined 1.83 billion Won(about 10.88 million yuan), see South Korean Media: South Korean Coast Guard Detained Three More Chinese Fishing Boats and Sent 55 People to Incheon for Investigation, at http://www.thepaper.cn/newsDetail_forward_1545354, 1 February 2018. (in Chinese)The South Korean coast guard also relaxed the conditions to enforce law by force.26The Korea Coast Guard on 8 November 2016 indicated the implementation of the Guidelines for the Use of Weapons. It specifies the approval of the immediate use of weapons by the coast guards in enforcing the law when they face violent situations and thus allows for “shoot first and report later”. Action commander may decide on the use of naval guns, machine guns and other crew-served weapons while the use of individual weapons is determined by a coast guard. The consideration for weapon use changed from “in the case of an attack against guard forces (including coast guards, ships and aircraft)” to simply, “in the case of an attack or attempted attack”. For crew-served weapons, the conditions are:where the safety of coast guards are not easily guaranteed as a result of an attack or threat of attack with weapons, where other party "s hull rams into the ship of coast guards and poses a threat to personal safety of the guards, and in urgent situations that demand the engagement of crew-served weapons for defense or counter strike according to the discretion of the action commander on the scene. See Korea Coast Guard Issued the Guidelines for the Use of Weapons, Allowing Shooting First and Reporting Later, at http://www.chinanews.com/gj/2016/11-08/8056927.shtml, 1 February 2018. (in Chinese)It set up special armed forces, increased the deployment of ships, and distributed high-pressure ejectors, long-range acoustic devices, electroshock guns and fl ash-bang bombs to police oきcers, which has raised the frequency of violent law enforcement incidents and seriously threatened the safety and legal rights of fishermen. Due to the above reasons, the number of Chinese fishing vessels operating in Korean EEZ is basically decreasing.27According to the Ministry for Food, Agriculture, Forestry and Fisheries of South Korea,South Korea has arrested 4,628 Chinese fishing vessels for illegal operations in South Korean waters since the Sino-Korean Fisheries Agreement went into effect in 2012. See GAO Mei, South Korean Coast Guard Once Fired Five Shots at Chinese Fishermen, The Beijing News, 18 October 2012, p. A10.

C. The Development Mode of China "s Distant-Water Fishery Industry and the Relevant Legislation Need to Be Improved Urgently

1. China "s Current Fisheries Law Is Insuきcient

At present, the management mechanism for China "s distant fisheries, as illustrated below, is not yet mature and complete, posing fundamental challenge to the development of this industry.

First, Chinese laws or regulations relating to distant fisheries rank low in China "s legal hierarchy and the relevant provisions are scattered throughout the system. In China "s system for distant fisheries management, only the Fisheries Law,Rules for the Implementation of the Fisheries Law and the Regulations on Fishing Vessel Inspection belong to laws or administrative regulations, while Provisions on the Management of Distant-Water Fisheries, as the core legal instrument in this system, is merely departmental regulations. Despite China "s strong supports to the development of distant-water fisheries, its laws and regulations contain no specific provisions on the industry, only with a brief mention in one or two articles. All these may not help raise the attention of Chinese authorities at all levels, oceangoing fishing companies and fishermen to distant fisheries. China has made special regulations on ship inspection, registration and position monitoring with respect to distant-water fisheries, but they are scattered in various departmental rules. In order to better comply with the management measures under the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, the Ministry of Agriculture of China issued special normative documents, which however have not been really transformed into domestic law,partly resulting in their undesirable implementation eあect.

Second, China "s Fisheries Law needs to enhance its extraterritorial effect.28XUE Guifang and FANG Xu, Strengthening Extraterritorial Eあect of China "s Fishery Law:Maintaining the Image of a Responsible Distant Water Fishing Nation, Pacific Journal, No.2, 2018, p. 60. (in Chinese)The Fisheries Law of China provides for its scope of application in Articles 2 and 8.These provisions indicate that the law adopts the principle of territorial jurisdiction instead of personal jurisdiction. That is to say, fishing activities undertaken by Chinese fishermen in waters outside China "s jurisdiction are not regulated by its Fisheries Law. As the laws and regulations with respect to China "s distant fisheries are insuきcient to meet the requirements laid down by its Fisheries Law, and many illegal practices in the distant-water fishery industry are not governed by Chinese laws, illegal fishing occurs frequently, causing damages to China "s image as a responsible fishing State.29XUE Guifang and FANG Xu, Strengthening Extraterritorial Eあect of China "s Fishery Law:Maintaining the Image of a Responsible Distant Water Fishing Nation, Pacific Journal, No.2, 2018, p. 61. (in Chinese)

Third, the relevant provisions under China "s management system are a bit general and the pertinent standards are too low, which are not able to meet international standards. With regard to fishery statistics, for example, the UNCLOS,the FSA and the Code of Conduct for Responsible Fisheries all provide for the responsibilities and obligations of fishing States with respect to fisheries statistical data, and specify the requirements for the collection and utilization of such data.The North Pacific Fisheries Commission and other RFMOs that China has joined also contain strict requirements for fishery statistics. In contrast, China "s Fisheries Law, except from requiring “large and medium-sized fishing vessels to keep fishing logs”, does not set out further detailed provisions on the collection of statistical data on distant fishing, nor does it provide for mandatory measures. The Provisions on the Management of Distant-Water Fisheries of China stipulates that distant fishery companies shall submit the documents and their production conditions to the Ministry of Agriculture and the competent authorities as required when applying for any distant fishery projects and carrying them out; nevertheless, the requirements regarding the collection of fishery data are not clear but obviously lower than those laid down by relevant international treaties to which China has acceded.30NIE Qiyi, On China "s Policy of Distant-Water Fishery (Master "s Dissertation), Shanghai:Shanghai Ocean University, 2011, p. 35. (in Chinese)As a result, Chinese fishermen and fishing companies, when conducting distant fishing operations, often inadvertently violate the legal provisions designed for the relevant waters, which further triggers fishery disputes.

2. China "s Distant-Water Fishing Industry Is “Big but Not Strong”

Although China is a big oceanic fishing State whose catch of pelagic fishing resources is among the highest in the world, its distant fishing industry still lags behind that of Japan and of other countries. First, China "s distant-water fishery currently adopts a relatively extensive mode of production. While the number of fishing boats grows sharply, their production efficiency and productivity are comparatively poor. In addition, the mode that China uses to cooperate with other States on fisheries is not good enough and its operation management fails to generate satisfactory effect, making it difficult for China "s distant fisheries to achieve sustainable and stable development. Second, China "s high seas fishery still lacks a solid industrial basis at present. Except the bases established in some waters oあ West Africa, where a relatively complete industrial chain of catching, processing and transportation has been created, a complete industrial chain for distant-water fishery has not yet been in place in other waters, including the North Pacific Ocean.Third, in addition to the aging of fishing vessels, China "s existing ocean-going fishing vessels are not equipped with advanced equipment on the whole. And some of their fishing methods are not in line with the requirements of RFMOs, which often makes such vessels become a prime target of international law enforcement efforts. Finally, China "s distant fishery industrial community neither possesses enough knowledge about its major fishing partners or the status of high seas fishery resources, nor invests sufficiently in scientific research, which also affects the further development of the industry.31TANG Fenghua, YUE Dongdong, XIONG Minsi, LI Linian and CUI Xuesen, Interpretation of Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean and Coping Strategies from China Oceanic Fisheries, Fishery Information and Strategy, No. 3, 2016, p. 215. (in Chinese)

3. With Weak Legal Awareness, Chinese Fishermen Are Reluctant and Incapable to Resolve Disputes by Law

The number of Chinese fishing vessels operating on the high seas is fairly large, but the Chinese fishermen generally do not have a high educational level.China "s fishery administration authorities have strengthened the training for fishermen in recent years, however, the training coverage and intensity still need to be increased. Currently, illegal behaviors of Chinese fishermen fishing on the high seas of the North Pacific mainly include: (a) fishing without a license, (b) failing to maintain fisheries data as required by RFMOs, (c) violating the provisions on closed areas or seasons, (d) fishing for a stock for which fishing is prohibited,(e) violating output or quota limits, (f) using prohibited fishing methods, and (h)resisting law enforcement.32TANG Fenghua, YUE Dongdong, XIONG Minsi, LI Linian and CUI Xuesen, Interpretation of Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean and Coping Strategies from China Oceanic Fisheries, Fishery Information and Strategy, No. 3, 2016, p. 214. (in Chinese)In addition, some fishermen or fishing companies fail to pay attention to the diあerences in the contents of the fisheries agreements signed between China and diあerent coastal States surrounding the North Pacific Ocean,which may lead to unlicensed or illegal operations, and also the arrest or detention of Chinese fishermen or fishing boats by the partner States, thus causing fisheries disputes with these States.33WANG Jinkui, International Cooperation and Risk Analysis of China "s Distant Fisheries,Practice in Foreign Economic Relations and Trade, No. 3, 2009, pp. 33～34. (in Chinese)

Apart from their weak legal awareness causing illegal fishing, Chinese fishermen engaging in distant fisheries also lack the willingness and ability to resolve disputes by law after the occurrence of fishery disputes involving foreign States. In most cases, they hope to solve disputes through employing “interpersonal relationships”, but such practices often backfire. On the one hand, Chinese fishermen, on some occasions, escape and resist the boarding of foreign law enforcement oきcers for inspection, which sometimes results in oきcers " excessive use of force; on the other hand, the law enforcement personnel of the coastal States around the North Pacific would, from time to time, infringe upon the lawful rights and interests of Chinese fishermen during law enforcement.

IV. Legal Measures to Protect Chinese Fishermen Operating in the North Pacific Ocean

In recent years, the North Pacific waters has witnessed a frequent occurrence of incidents involving Chinese fishermen operating in this area. These incidents were mainly caused by the lagging of China "s domestic legislation behind the international one, as well as the lack of willingness and ability of Chinese distant fisheries industry to abide by and apply the law. Given the causes of these incidents,this paper proposes four legal solutions as follows.

A. To Improve China "s Domestic Law on Distant-Water Fisheries

In view of the insufficiency of China "s legal system on distant fisheries management, it is necessary to create a unified system by integrating the scattered provisions related to distant fisheries into the Law on the Management of Distant-Water Fisheries, or into the Fisheries Law and its implementation rules. In that case,such provisions could gradually rise from the rank of departmental regulations or normative documents to laws or administrative regulations, and their legal authority would accordingly be enhanced. Meanwhile, it can also make it easier for fishery administrative authorities at all levels, distant fishery enterprises or fishermen to consult and learn relevant provisions.

Fishermen fishing on the high seas or in the EEZs of other States shall observe the relevant international treaties, inter-State fisheries agreements or the laws of other States. However, there are still differences between China "s management measures for distant water fisheries and the provisions of the relevant international legal instruments as well as the legal standards of other States. In addition, due to fishermen "s improper understanding of international legal documents, unintentional violations often occur. China, as a large fishing State, should take the initiative to keep in line with the international standards, by actively studying the relevant measures of some international legal instruments recognized by China, such as the UNCLOS, the Compliance Agreement, the FSA and the Code of Conduct for Responsible Fisheries, and gradually transforming these measures into domestic laws to improve domestic fishery regulations and management measures. For example, China should, by referring to the relevant provisions on submission of statistical data on fishing operations under the FSA, specify the principles to be followed in China "s collection of statistical data on distant fisheries and the types of data to be collected, so as to raise the awareness of its fishermen on the importance of data collection. Considering that Chinese fishing vessels operating on the high seas of the North Pacific are many years of age, their hulls are old, and face an array of potential safety hazards, China should raise the acceptable standard of fishing vessels and their equipment through measures such as vessel inspection and issuance of fishing permit for ocean-going fishing vessels; China may also grant government subsidies or take other measures to promote the elimination and upgrading of old fishing vessels, as well as the application of new materials,technologies, equipment and energy, and further to enhance the strength of China "s distant water fishing enterprises. China "s processing of the pelagic fishery resources in the North Pacific high seas is basically at the middle or low level, lacking the ability to intensively process and comprehensively utilize the processed wastes like heads, viscera and eyes of the fishery resources. Hence, China should, through legislative means, encourage and guide fishing companies to properly collect and utilize the processed wastes of fishery resources and raise their industrial productivities. In addition, China should enlarge the extraterritorial scope of its Fisheries Law, so that it can be applied to Chinese fishermen or fishing companies undertaking fishing operations in the sea areas beyond China "s jurisdiction. China should also, through legislation, impose increased penalties against vessels and fishermen illegally fishing on the high seas of the North Pacific, which may create a strong deterrent against illegal fishing and better maintain China "s image as a responsible fishing State.

B. To Improve the Fishing Vessel Monitoring Mechanism and Duly Carry out Joint Law Enforcement Activities and Deploy Warships to Protect Fishery on the North Pacific High Seas

First, China should enhance its fishing vessel monitoring mechanism and strengthen supervision in advance. According to the discussions above, in order to prevent the occurrence of IUU fishing activities to the maximum extent, China needs to proactively use technology, including the Beidou System, to strengthen the tracking and management of vessels, and complete the position monitoring and early warning system for fishing vessels. China should also gradually require larger presence of observers on ocean-going fishing vessels, and enhance its capacities to perform international agreements. Apart from that, China should establish and complete the “blacklist” system for individuals illegally engaging in distant fisheries, and increase the severity of sanctions against illegal activities.Furthermore, China should build an early warning system for risks to distant fisheries and strengthen its capabilities to prevent and control risks.

Second, against the backdrop of the reform of law enforcement agencies,China should, in due time, carry out joint law enforcement activities and deploy warships to protect fisheries on the important high seas fishing grounds in the North Pacific Ocean. In recent years, Sino-foreign fishery disputes and violent conf l icts occurred frequently. Seeking to protect the rights and interests of Chinese fishermen, China has integrated former maritime law enforcement agencies in charge of issues such as fishery, maritime surveillance, maritime affairs and border defense into two organs: China Coast Guard and China Maritime Safety Administration. The Plan on Deepening Reform of Party and State Institutions released in March 2018 incorporated China Coast Guard into the Armed Police Forces under the unified command of Central Military Commission. Undoubtedly,these measures will greatly improve the eきciency of maritime law enforcement,including fishery law enforcement, and help protect the rights and interests of Chinese fishermen and China "s marine sovereignty in case of conflict. On the other hand, with regard to IUU fishing activities on the high seas, China "s law enforcement agencies also need to strengthen cooperation with the States bordering the North Pacific Ocean to jointly carry out law enforcement operations and inspections on the North Pacific high seas, so as to timely and properly handle violations involving foreign parties in the distant-water fishing industry and avoid violent law enforcement incidents.

At the meanwhile, in response to violent law enforcement of some States, it is suggested that China duly send warships on a regular basis to protect fishery on some important high seas fishing grounds, so that the legitimate rights and interests of Chinese fishing enterprises and fishermen could be eあectively protected. Such fishery protection operations are consistent with international legal practice. For example, in the famousRed Crusadercase, a Danish frigate began hot pursuit of the British trawlerRed Crusaderin its territorial waters and then fired solid shots at the trawler without warning shots. The frigate was blocked by British naval vessels when it sailed to the high seas, which prevented the excessive use of force by the Danish frigate, kept the situation from getting worse, and eあectively safeguarded the rights and interests of British fishing vessels.34XU Peng, A Study on the Principle of Proportionality in the Enforcement of Law at Sea,Shanghai: Shanghai Jiao Tong University Press, 2015, pp. 342～343. (in Chinese)

C. To Actively Carry out International Cooperation and Raise China "s Voice in Fisheries Negotiations

With regard to China "s coastal fisheries, given the disputes having arisen when Chinese fishermen went fishing in the waters of South Korea and Japan, the Ministry of Agriculture and Rural Affairs and other ministries of China should make efforts to increase the fishing quota for Chinese fishermen in the common fishery zones in transitional arrangements between China and Japan and between China and South Korea. Additionally, China could also leverage the strength of China Fisheries Association and other non-governmental economic organizations to carry out exchanges and negotiations on fishery resources cooperation with the counterparts of South Korea and Japan, pursuing to win more rights and interests for Chinese fishermen with respect to coastal fisheries in the North Pacific. Furthermore, the ongoing negotiations between China and South Korea on maritime delimitation should take the fishing practice of Chinese fishermen in this traditional fishing ground as a critically relevant issue to consider, which may eあectively protect the interests of Chinese fishermen. Of course, in the long run,it may be a more feasible way to ease the dependence of Chinese fishing vessels on the waters in transitional arrangements between China and Japan and between China and South Korea, by strengthening the management of coastal fisheries and restoring the seriously declining coastal fishery resources.

With respect to the distant fishing operations of Chinese fishermen in the North Pacific Ocean, China is expected to do a good job in two aspects. On the one hand, China should actively participate in the aあairs of FAO and North Pacific RFMOs, as well as the negotiations on relevant legal documents, aiming to raise China "s voice in these organizations and promote the development of a fair and reasonable fisheries governance mechanism on the global level. To raise China "s voice in such international and regional fisheries management organizations, one important step for China is to adequately collect fishery data and investigate and assess fishery resources in relevant waters. China has not done enough in this respect, which should be improved and enhanced. On the other hand, China could,by taking advantage of the initiative to build a “Polar Silk Road” with Russia,actively expand fishery cooperation with Russia and make every eあort to conclude bilateral agreements with it with regard to the fishing operations conducted by Chinese fishermen in some of the important fishing grounds of Russia, so as to further drive the development of China "s distant-water fishing industry.

D. To Strengthen Legal Publicity and Education

Given the weak legal awareness of Chinese fishermen operating in the North Pacific, China should endeavor to increase the relevant legal publicity and education activities at two levels. On the one hand, China should make greater effort to cultivate a group of talents with a good knowledge of international maritime and fishery laws and regulations to participate in the negotiations on international fishery cooperation and the settlement of fishery events involving foreign States; China should strongly support the establishment of nongovernmental organizations to safeguard fishermen "s rights and interests, and the cultivation of public interest lawyers to protect fishermen "s human rights. When Chinese fishermen are detained or punished by law enforcement oきcers overseas,non-governmental organizations or public interest lawyers should step in to provide legal assistance to fishermen to prevent their legitimate rights and interests from being compromised. On the other hand, China should strengthen the legal education and training for fishery enterprises and fishermen, and urge them to understand and abide by relevant international treaties, bilateral fishery agreements and domestic laws of the States concerned. China should teach fishermen to actively support the inspection work by law enforcement officers, and raise their willingness to abide by law. Fishermen should also be acquainted with the provisions of relevant legal instruments to safeguard their legal rights and interests. In addition to the recommendations above, China should further guide fishery enterprises to improve their fishing efficiency, and as fishing technologies develop, timely apply more environmentally friendly and eきcient fishing gear and methods, so as to promote the protection and sustainable utilization of high seas fishery resources.