FISHERIES ISSUES IN THE YELLOW SEA AND THE EAST CHINA SEA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000200130008-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 40
• Document Creation Date: December 22, 2016
• Document Release Date: September 12, 2012
• Sequence Number: 8
• Publication Date: September 1, 1973
• Content Type: REPORT

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THE YELLCW SEA AND THE EAST CHINA SEA'.
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Quotation fo: rublication,
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mad;: w.tilout Ina consen.t
of the author.
twarromm....
! ?
?
'
accasiortai Seriei
Low of e.la sea Inalitute
Urilversity
.t
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The Lill, of the Sea Institute
University of.R%ode Island
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Financial support for the Institute's activities is proYided by
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Professor Edward MileS
Graduate School of International Studies
University of Denver
Dr. Giulio.Pontecorvo
Professor of Economics
Graduate School of BUsiness;.
Columbia University
Dr. Warren Wooster '
Rosenstiel School of Marine k
Atmospheric Science '-
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Mk. William C. Herrington
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Professor 'lyres S. McDougal
Sterling*Professor of Law
Yale University School of Law
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Dr. Oscar. Schachter
UNITAR .
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_801 United Nations .Plaza
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Mr. Jacob J. Dykstra
Point Judith Fishermen's Cooperative Association
Point Judith, Rhode Island
Mr. Lowell Wakefield-
ConSultant, Wakefield Seafoods, Inc.
-Port Wakefield, Alaska
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CONTENTS
1. GENERAL
1. GeorgaphiCal Circumstances
2. Fisheries Resources and their Development
II. FISHERY RELATIONS BETWEEN JAPAN ANDLKOREA -
1. Historical Background
2. Japanese-Korean Fishery Dispute (1952-65) and its Settlement 7
Features of the Treaty
Appraisal and Prospects
FISHERY. RELATIONS BETWEEN CHINA AND JAPAN
1. Background
2. Structure of Non-Governmental Agreement
3. China's Unilateral Claims
7
4. Extensions and Revisions 15
5. Regulation of Seining Operations
6. Observations
A. Use of Von-Governmental Agreements
'W. Unilateral Claims
C. Prospects
. TV. FISHERY RELATIONS BETWEEN: CHINA AND OTHER SOCIAL/ST STATES ..21
21
18
, 19
, 20 ?
. 1. China and North Korea
2. West Pacific Fisheries, Oceanology and Limnology Research Cooperation
Agreement
V.. CONCLUSION
'Footnotes
? MAPS NO. I. Demarcation around Cheju Island
No. II International Regulation of Fisheries in the Yellow
Sea and the East China Sea (China'Japan and Japan-
Korea). .
21
23
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1. Geo a hical Circumstances..
. The Yellow Sea and the East China Sea are semi-enclosed by the territories.
of China, Japan and Korea. Legal problems involving the law of the sea are. ?
created by the natural facts Cf geography in the first instance; and for this
reason, it is deemed essential to describe the geographical features of the-area.
in some detail here. '
.. L
. ? '"-'
-China .on the east and south faces-on to five maritime areas,. Pohai Bay,
the Sea, the East China Sea, the Gulf of Tong King, and the South China.
-
. Sea. TheChinese coastline is soirregUlar and indented that, on the mainland.
.
, :alone, it runs to almost-11,000 kilometers (km).. Almost half of this -- 5,100
:kms -- borders the Yellow Sea and the East Chine Sea. .Along the. coastal and
-offshore areas of China are found..3,416.islands, over two thirds of them in the, .
. coastal waters- of the East'ChinaSea:Along with that of Taiwan,'-ihese -island..
. . .
..coastlines'together measure over 1O,0 kms in .length.
' Ja an consists of 3,922islandS-including Hokkaido', Honshu, Shikoku and
. Kyushu, which cons Japan proper ._;- /t faces the Sea of Okhotsk on. the
northeast the Pacifioon-the east-and.south, the-Eatt.China Sea on the south.
_zwest.. .The.toastlines%ofthe four:Mainislands, also Very irreoulaton the wet,
' are 15,748. kms long and those of.the:3-?918 islands about 14,000kms. Howevezi, :
,::only the west coast of Kyushu -- theyesternmostof the fourmain islands -40(1
the Ryukyu Islands face the East. China Sea, and Japan is not a littoral state of,
.the Yellow Sea-at all..?:4t may alsohe'moted that the prefecture of Okinawa,?
?which comprisestbe.RyukyuIslandi?:-.i-sa.sparse chain Of volcanic islands-forning_
a seaward arc between :Kyushu and Taiwan,'-cOnsisting "73 islands -plus numerous ? .
coral outcroppings, sand bars andcrowns of submerged land masses; which are some-
times classified as islands."3 Strictly speaking, therefore, Japan is a littoral
state of the East China Sea in a broader sense that China is. -
4-' . ? . ? .. ..
Korea is a peninsula about 1,000 kms long and about 250 kms Wide, bordering
-with EITITia"--on the north and with Russia-on the northeast.' .0n the. east lies the
. . Sea Of Japan, called the East sea in Korea-;-onthe west the Yellow sea, called the
. .. _
t West.Sea-in 'Korea; and on the south the East China. Sea, Southward ofKorea's ' ? e!?:7 '
island province of Cheju situated about GO kms south of the -mainland. The coast7
line is so deeply and irregularly indented on the west and south that its length
reaches.about.8,600 kms. The coastal waters on the west and south are studded.
with 3,579 islands -7 half Of them uninhabited, their coastlines totalling over
,..9,600 kms. Altogether this makes theA.ength of Korea's coastline's over 18,000
The waters that surround the Korean peninsula between China and Japan are:
. . ? ?
. . , .
The Sea of Ja an is about one million square kms in size and is semi-enclosed
by-Japan, Koreaiandr.RussiaTheyaverage depth is about 1,700 meters, its deepest --:
- 5
area reaching over 4,000 meters. The 200-meter isobath runs very close along the
coasts of the three countries:
,. .
' The yellowsea is about 400,000 sql(ms in size and is-semi-enclosed by Korea
on the east and by China on the west, fronting the Pohai.Bay of China on the north.r.
west. On the south, it is contiguous to the East China Sea at a direct line con- '
necting Cheju Island of Korea and the north bank of the Yangtze River of Chin4.
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- 'Ho -- has deposited in 'it: masses of'clayey soil derived from the northwest.
regions of China and carrieddown?southward by. the current. According to an. -.-;,?-:
..--.?
. . -estimate, the .amount of sandalone which the Yellow River wshes down into the
.Yellow Sea every year-may:be asmuch_as 1,380 million tons..7. Another. source says --
, ;:? - that at one time the entire ShantungAodninsula which protrudes. deep into the Sea ?
-Was a coastal island'but.has?been bridged by the sediment thus brought down. 7 TO.y
.. :a much lesser extent,: the Yangtze River which flows in the East China Sea. further ?
? south also contributes to the yellowish appearance' of the Yellow Sea, As the ? -..
- . rivers flowing into this sea from the Korean peninsula, are not so large-, .114,
.eastern-half of 'the Sea is much less yellow;- ? ' ? .. -
, ? . ?
. .
.. . .
. ??- A similar degree. of contrast.exists-in.the topography?Of the sea-bed, The.
influence of the two Chinese rivers extends. far beyond the, shoreline on the westi.
so that a smooth gentle'slope, (l:26;000). from the west meets the steep 'and less
. -..regular slope (1:6,000) from the pastin-an?axial valley two-thirds across on the.i?..-
,. eastern side of the Yellow Sea.: The subsoil of the seabed shows a.similar dis-
tribution -of sediments, '.the eastern third being:floored:by sand derived from the
the 7 ?
... ? 7 ' mountains of Korea, the rest on e-west side from the clay brought down by the -
two rivers of China& - : - *. ?.: ':,:.-- - ''' ' - ' : . . ... '' '..-..
7-- T
-:-
--
' ?...?
The East China Sea is.borderedby:China'orithe West and by Xyushu and the,., .
_
-, ...41yukyn Islands. of Japan on:the?east:end South respectively, andfaces.Korea.and:-
the Yellow Yellow Sea on the north On thOouthwest, it ends at a direct line connect-.: -
.; ing the Pingtan. Island of the mainland coast.,andthe northern end?of Taiwan, and
L v_oommunicatesmith the South China Sea the Strait of Taiwan . It is about .
--- :.:700,000'sq.kms in size and the Twatei'siets gradually deeper onthesoutheast untilH-:
_the bottom -meets the .120-meter contoUr-linenear.the Okinawa Trough,whiohform.., ?
the southeast margin of this-Sea.'On-the northessti-the-Trough ends.in,a-wedge-...
...shape formation at a pointlaetween',.the Korean -Cheju 'Island and the Japanese
1 .,:?:.Xyushu, Yellowish traces of the surfacewater are also found in the sea, but -....-? .-.
1:
.? ? ? . . ?-:,
- -'-along the Chinese coastal.artai.onthe west.
. ?,. .. ??
,-?
? . ?
? . . ? ? . .? . ?
, . .. ....... . ? ? . .? . ? ?
, . The sea-bed topography of the"East?China Sea is alsofairlysimilaeto, that . .
. ? ?
H of the western part of the Yellow Sea, but the southeastward extension of the '
. 'smooth gentle slope abruptly ends-at.theOkinawa, Trough. ?In the Absence of 'a
.
land masson the east to project av.Yestward slope as in the Yellow Sea, the -?*-. - .
..-contrast-hereis. not between east andmestbut between the inner and outer..7aalves. :
-:..of the sea-bed. Otherwise,ythe.distribution of sediments is also. similar:to that ..
.of the Yellow 'Sea, that is, silt and clay-on.the-inner. half and sands on the outer- -?
? ,.
:. . -?
? -
-. ? . . ?? ? ? '
..Currents and tides of the YelIow.Sea-ahd the East China:-Sea.are.two.impoit-- ?,...
. .
. ?
. ,
.. ant factors, amohg others, that play.ansessential role in making the area se--
fertile for fisheries..A branch of the North Equatorial Current, the Kuroshiho.,
. -meaning 'the black current" in Japanese? : travels northward through the .East-
china Sea; it is still some 300 kms wide and.200:metersdeep, and =Vas at-the.-
: rate of 50 to 75 kms a day, depending on the wind and the?season. At-its.'.? ' -
, ? .return-trip,.:so4thward from the POhai Bay, it flows, along the 'mainland coastof...: :
. China as a cold current, having beellocooled down by the cold .Kamchatka'current -? .
. .-? flowing Southward along the SiLerian and.Xorean?Coasts. Rich?fishing. grounds are
. formed at the point's where the warm.andoColcl! currents intermix ? To this mixture '
of currents is. added a phenoMenal.tide. 'On the average, the difference between .-
-
high and low tide along, the-westcoast of Korea is about six meters, with a'
? maximum of 9.7 meters at.inehon; and along the.east,coapt of?ChinaaboUt three
. meters, witka raximum of :.fifteen meters .at Hahgchou'Day.soUth of Shanghai.9- Fish ' ?
-- culture. and salt farms which prosper along the coasts of China and Korea in' . ?
?,..i.e. ' .-the Yellow Sea'andthe East China Sea oWetheir.development to these favorable . .:.
naturaLconditionS& . .
. . . .-.-
- ?
. . .
-? ?
? : ..
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? ? ? ? ?'?-? ? ?
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.It is a shallow region withdepthsthat average 55 meters and nowhere exceed ? ?
125 meters. 1 The Sea takesi.ts name Huang Hai from what the Yellow River Huang
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2. Fisheries Resources and Their Development_
? China:. As up-to-date statistics of the Chinese fishing-industry are not
available, only a general account .of Chinese fishery resources can be given, based
or relatively old Chinese'sources.. ;The. total area of coastal and offshore-fishing..,
grounds to.the'depth.of 200 meters!along the coasts of China, is approximately
1 1/2 million sq kms, which. comprises as much as 23.7% of the world total and is,
therefore, larger than that'of any. other countty..10 The number of species. in this
.vast area of the sea exceeds 1,506 altogether, of Which the Yellow Sea shares '
' some 250 and the East China Sea some 400. However, coastal and offshore fishing.'.
-in China concentrates mainly on some fifty-species only, with four of them yield--
ing more in terms of catch than all-the rest put together. These so-called. .
.""four Majcirs" Are represented_by the,small croaker, the:lakge croaker, the girdle
fish and the white-scale herring,'ofwhich the two species of croakers alone used"
to contribute no less than 40% of the' total annual catch up to 1959,11.and.... .
probably still do. In this regard,-:however, it should not he overlooked that
.China has recently shown much interestalsoi.n.fishing mackerel:and horse
mackerel by means of -seining operations in the Yellow Sea and the gest China Sea.
Up to 1970, this type of fishery hadbeen.virtually monopolised .by the ? '
? Japanese, with the Chinese-merely-trying-it-on an experimental basis in-the South
.China Sea.-..Chinese interest.appears-tohave been aroused by the success of these
experiments as well as:by Japanese0Ver-fishing of these species in waters closer'
.to the Chinese coast..12: . ?
China's 'catch was estimated to have been approximately 5.8 million-tons-.
in 1970, when the world total was 69..3 Million tons. This conflicts'with.a figure
given in a- Chinese source -which records the 1958 catch as 6,03 miilion'tOns,-
. though "the great leap forward" from the previbus year -- 3.12 million-tons in
1957 -- might invite some doubt.aboutjts'accuracy. It is Of much interest to
,note estimates regarding-theftiturel:pbtential of Ch1heS6 fithery'
According to. a.predition in 1956 .(the,latest one available to-the-author), the'
total-catch Would teach at high-as.9.6.million tons per year; -including-inland?
fisheries. - Another memextraVagant'estimate places 'the potential 'annualoutput
-at 30740 million tons. . Despite the diffiCulty of. ascertaining the exact aMount
.of its Annual catch,at the present time, it is clear- from all indications that;
together with Peru,- " Japan and:Russia, China ranks as one Of the four major- .
fishing states in the world, yhOSe Catch altogether ia_approximately one half
of the total world catch. In 1970, for example, Peru caught 12,600,000 tons,
Japan.0,300,600'tOns and' Russia7,300,00.-tons.
Geographically; the areas offishing operations In'the'dbastal-and-Offshore'
..waters of.Chinkmay be divided broadly- into four major zones: -the Northeast, the
North, the East and the Central-South China FiShing Zones. The Chinese fishing.
grounds in the Yellow Sea and the last China Sea comprise the first, the second
and the northern' 'half the third:zonea::-. In these-waters:there are five .
principal methods of coastal 'and offshOre fishing: Otter 'trawl, drag net, gill'
net, set net and lOnglineset,15-with-seine-fishing?expected to catch up rapidly,
as' noted above.
? Finally,- China's inland fisheries deserve to be mentioned briefly in passing.
By-virtue of. natural_conditinns exceptionally favorable for fresh-water fisheries .
at large, China is the largest as well as the oldest inland fishing state in the
.
world, -with fresh-water fisheries-established since the 11th' century B.C. There
are over 5,00 freshwater species of which 35 are exploited .in significant p,
? 'quantities.- "Four of the best fish raised domestically in China are'the black
carp, the silver carp, the Chinese ide and the big head."16 The harvest from -
'numerous rivers, lakes, ponds and rice .fields usually account for at least a third
of the total annual catch of fish. Extraordinary efforts are being made to
develop' this aspect of China's fishery resources.17
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.Japan: ./n 1969, Japan-landed 8,13,400 tens, the second largest national
.
catch, after Peru whose, landings were 9,243,000 tons. .In term t of value, :
_ . however, the Japanese catch wasworth?about$2,400 million, whereas that of Peru,
.. 'over 95 percent of which was anchovies for rection to fish meal, was less than
. $120 million -- about a twentieth of Japan's.. Japan dwarfs not only Peru in
' terms of value but also two of its most ambitious competitors, China and Russia,
? both interns of tonnage and value. :,- .. -- .7 '
. ? .
-
. . . . .
,
The Yellow Sea and the East China Sea together constitute one of the
,.eight coastal and offshorelishing.sectors of Japan, the others being the .
Hokkaido, the three (north, middle and south), the two (northand.west) sea ofJapan, and the Seto Inland -teeter's: -Foremost among some thirty different
-.-.species caught in the East China-Yellow Sea Sector are mackerel, horse-mackerel,
--sardine;. bed, tuna-and7tkipjackOrderOf_their.ianding-in 1969:.And.the major. ?
: fishing Methods used are various types of seining, angling and trawling.19
Korea: Major.tpecies caught in great quantity in the coastal and offshore':
- 'areas on the west and south of Korea are hair tails, corvenias, macke561s,
sauried, flounders and. squids, in order of the amount landed in 1970.
?RtVerout.other species are caught'in.lesser-quaniity. In 1970 Korea landed about
935,000tons altogether,- including those from distant-water fishing (90,000 tons),.
?-.0fshoterhaling_4?,00ponsh-aquaculture(120,000 tens) and inland fishing (400
:tons)'. ,Thismeans that most of'theiotAI:caich?was from coastal and Offshore
fishing, which amounted to over720400 tons:21. Ofthis,more than 5.55,000 tons
.were.caught,fromthe.waterp of the:west and south, which is sufficient proof
the utmost importance to Korea of the Fishery in the Yellow Sea andthe East
China Sea:22
?
The -Vain fishing-methods'whibhare used by KOrean-fishermen in thesb areas_
are drag net, gill net, purse seine and staw.net. Trawling is a predominantly- -
popular type pUfishing, pattibularly:ibthe-Yellow Sea; because of the thallow..
water and bottom of the seaFurthermOrP. t)-4ri,etY.snd abundance of the
stocks of fish as well as the climatic conditions of the area enable fishermen. .
? to Operatertually.throughoUt the:year- Catches Vary with the season and_theA:
species-availaKe. This-catch variability tends to reduce the profitability
-Of the" fishing .
...? ?
/I. FISHERY RELATIONS BETWEEN JAPAN AND KOREA
1. Historical Background
. "
Geographically, Korea is' favorably-placed to-develop-marine repources.: , ? ?
24
. Yet Korean use ef.the:pea for fishing or navigation has been modest in comparison
?with other countries with similar geographical advantages.. 'As far as fishing -
it concerned, a number of reasons can be given for this relative indifference to
the sea.. First, under the Confucian social system during the feudal ages, the
-status of, fishermen in-Korea-waslower-even than that of peasants. ''Fishing was
therefore confined to-the inhabitants of the coastal-areas to whom other trades --
were inaccessible. They were also open to severe extortion by the ruling class. '
Second, in striking contras with the observancP.of.a fish-day in medieval
- ? ?
Europe, which created greater' demand for fish,/5- the killing of fish and other
Ibrms of life was often branded as an act of blasphemy under the Buddhist
tenet of absolute respect for all living creatures. At different times, fishing
was totally forbidden and nets were burned under royal decrees. Third, some
coastal areas of Korea'on the South were always vulnerableto plunder by Japanese
pirates against whom the central government of Korea was not' sufficiently powerful
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to provide protection. As a result,..some fishing villages had to be abandoned
completely at times.2G
? The third factor is particularly important in the context of the, fishing. ?
history of Korea.:...Fishery-relations between Japan and Korea have always-re.-..
fleeted the state of:Japanese-Korean relations in general.. Fishery disputes.were.
often the. sources of conflict between the 'two countries.. Formal arrangements.
:to settle fishery problems datc'backHto the early 15th century, when, in 1426.
Korea agreed to permit Japanese-fishermen-to settle at three designated -Korean .:.
ports.. To regulate theirinter7fishing; a crude form of agreement was made An
1442, which in modern terms wOuld have been a fishery treaty. -But Korea failed"
.to foresee that the influx "of Japanese fishermen. would be the beginning of a
series of violent.ctopflictswith-lts,ownfisheiren, which in fact culminated in
the so-called "Japanesefishermenls uprising" in 1510.27 This incident led to .a,
complete Serverance-Of.relations.between the to countries, and as :a rest.lt,
Japanese fidhing in Korean waters was tat11Y-outlawed. The Japanese continuedi;
however; to 'haunt Korean fishing groundsas before and indeed they, were so
familiar with the Korean coastal areas that theycould serve as pilots during
the Hideyoshu invasion of Korea:beginning.in 1592.28 From the mid-17th century.
Japanese-Korean fishery relations entered 'a quiescent. period of over 200 years,
when the Tokugawa shogunate of japan adopted-a closed-door' policy (SakokureA:
the order' of closure) in 1639,:-?wherebyexit.to any foreign country for any_
purpose including fishing was strictly limited. It was not until 1853 when the*,
American CommodOrePerry!a"Black Ship" made its awe-inspiring appearance at Uraga,..
Japan, that its door was reluctantly opened.
.? . ? :
- - ?
_ .
? ;With this.basic?change-Of-Japanls external policyi4ta.fithermen-were
free to leave for :the .Korean coastal waters again, and relations between?the
countries. began to?be,strainea:one,againoth sides.sought:to avoid fUrther.
conflict by regulating their:interfiShing In 1893, for example,:4 trade
.agreement included a reciprOcal-fishery'clause:lart.-41Y:'. Based on this. proviSion
aJiShery*treaty-was.doncludedYin 1889, which was superseded by another?in 1908..29.'
Orithe.face of it, each Ofthesefishery:agreements:wasreciprocal; but
fact onlya "Trojan horse" that helped to place the Korean .fishery gradually in
the hands of Japan.' :As long.as-no Korean fishermen wished', or were able,. to_
operate near the: coasts of Japan 7-.andlew do even today -7 a reciprocal
agree-
merit by each Party to Open part Of?itsCoastal areas to: the fishermenef?-the?.:
other was entirely.one-sided,?merely invitinr.7_Japanese.fishermen to operate
legitimately in Korean fishing grounds 30 - - - ? ? '
. . . ? ...... ? .- .
. The fiihery'treaties did not, however, help to improve the eVerworsening-re?
lations:pf the:two countries, since few Japanese fishermen were reasonably
.prepared-td.reSpect the provisiens.. The fishery technique of Korea was so back-
ward at that time.that only.a,limited,amountOf coastal stocks could?be.havested--
.by Koreans, whereas the.west.coast fishermen cf Japan, still without motorboats
could find' noother fishing grounds so near and so rich. The statistics of
190840 Show that,.in terms of patch, the japaneSe Were'almoat'four timesas
'
efficient as?Koream:fishermen.3- In-these:circumstantesi-the japanese,fiShermen
were always.tempted.toA4nore?the treaties,.especiallysince.Koreacould pot
:enforce.them.in.any.event. Between-the 1880'S." and the, 1900's, theZapanese,were
?so.rapacious.in the coastal areas of Korea; especially in.the Cheju areasi-that ?
'the_fishery chronicle in Korea depicts-,their behavior as sheer piracy. .Resent-
merit was deeply rooted in Korean memories, ready to surface whenever a fishery
issue with Japan emerged as .a cause of. between the tide, countries.
? ? ? ?
- - .- ? - ?
. -Around.the-turn of the century, Japan was:not the.onlyfishing competitor'
along thecoastal waters ofKotea. Mainly on the west,' Chinese fishermen also
'began to exploit the fishing grounds after the. 1882 Sino-Korean trade Agreement.
.wasolgned, 'including' a fishery clause.'Along the east coapts of Korea, whaler4s.
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from Russia started to:operate from their base in Vladivostok after 1891 when a'
whaling company was formed specifically for this purpose.32 However, Japan's'
victory in two wars for hegemony in Korea ?.over China in 1895 and. over Russia
in 1905 -- effectively eliminated its competitors from the Coastal areas of Korea.
When Korea became a protectorate of Japan in 1905 and was finally annexed to it
in. 1910, the fishery history of Korea entered a new era of superficial.
modernisation. In 1909 the first :fishery regulation law was enacted. This was^
drafted by the resident authorities of Japan and was promulgated at the coming -
into force of the fishery treaty with Japan concluded the year before. Under this
domestic law and the treaty, Japanese fishermen in Korea were granted an equal .
opportunity to operate within the coastal-waters-of Korea.- From then on, fishing ?
in Korea was now entirely in the hands of Japan and was making progress at an ,.
unprecedented pace. - ,
The extraordinary rate at which Korean fishery developed after the Japanese
take-over in 1910 may be seen from what was actually achieved during the first
two decades of Japanese rule (1911-31):33
1911--
1921
1931,'
Fishery Population
194,362
343,700-
480,025
.Boats :
13,924-
.274513
39,974
Catch (tons)
66,365
442,233
1,039,470
1970 (South-only)
1,165,232'
68,355
935,461
This was made possible through a nuMber-of positive-measures which' were Under-
taken by Japan immediately after-the annexation.- As a- first step to develop the
fishing industry in Korea, basic innovations ih fishery administration were intro-
duced through legislative and organizational reforms. Second, fishing methods
.
were greatly improved-with-the introduction of more efficient fishing vessels,
.though it was not until 1920 that:iotor7boats began-to be used forfishing
Korea. Third, besides increasing the catch, much effort was also made to promote
other aspects of the industry such as fish culture, Manufacturing and marketing.
Fourth, the.influx-of Japanese fishermen into Korea-was actively promoted by:
means of What may be called subsidised immigration. In fact, it was these
"recruited fishermen" and their managers from Japan that came to dominate all.
segments of the Korean fishing. industry.:
This rapid fishery growth in Korea reached its peak in 1937 when the total
catch amounted to 2,115,785 tons,_a record still'unbroken even by the .combined
efforts of both Korpans.34. This was.madepossible by indiscriminate overfishing
which was carried on by-large-scale fishery interest from-Japan. From:the::
historical viewpoint of the fishery relations between Korea and Japan, it_is
essential not, to overlook the background, extent and .consequences of this over--
fishing in Korean waters up to.. the early 1930't. First, under a System of
'licensing all fishing activities, the industry was quickly monopolized by a
limited number of large investors. This was a means of helping to accumulate
fishery capital at the expense of a-potential colonial industry, as was rightly
observed by Japanese analysts.35- Naturally, rapid as the de7elopment of the
fishery was at the time, it offered little benefit to the people around whose.
coasts it was being developed. This was bitterly resented-by-Korea.. Second,. the
sea resources and their feeding grounds had been so completely depleted by
.Japanese trawlers and drag nets that these two types of fishing on the Korean
coabtal and offshore areas-had to be strictly limited.by Japan itself.36 Third
the recent acrimonious fishery dispute between the two countries, which lasted
fourteen years (1952-65), had its roots in this overfishing, as will be seen
hereafter..
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mmaimaaanzenuisztiagatzicagaamawsiwzgi,
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? , .
During the period.oftheAllic&occupation Of Japan (1945-52), Japanese
fishing was placed under' restrictions, which remained in effect almost up to the
restoration of. its sovereignty on April 28, 19524 when the San Francisco Peace
Treaty came into force.. The restrictive measures were implemented within what:
'came to be called "the MacArthur Line": all fishinn activities were limited by .
referenceto period, area, instrumentJand'species,37 The Peace Treaty (Art. 9)
placed Japan under the obligation to negotiate 'with the Allied :Powers so
willing
for the conclusion ofbilateraland multilateral agreements for the regulation:: -
or limitation of fishing and the conservation and development of fisheries on
the high seas." Article 21 entitled Korea to the benefits of Art. 9. Upon ?
Korea's proposal in October 1951to-holdlishery talks, Japan showed no positive
reaction, while, on the other hand,:?.itagreed to negotiate with Canada and the
United States, which resulted in its reluctant acceptance.of-the so-called
principle of abStentionein'the North Pacific ,Fisheries Convention 38 )Korea was
cOncerned?abOut the.prObable return 'of Japanese fishermen to the waters around its-.
coasts, once the impending ebolition'of-the MacArthur Line-unleashed them. Hence,..
Korea Was justifiably concerned with the need to protect its sea resources which
had been so thoroughly.destroyed.by Japanese overfishing, as noted above, but '
which had.barely.been.restored to'productivity as a result of "the peace in the:.:
%sea" maintained .by virtue, of the.,Var and the MacArthur Line. Aside from the need:
for conservation, Korea foresawanothet.problem which could not be ignored under.
the circumstances of the time. . To e:diVided'peninsula engaged in -a civil war,....
one half against the.other half,J.t.-was unthinkable: for its coastal waters to. - ? ?
be studded with the fishing vessels of a foreign country for which the war.: itself
.was a distraction rathertthan.a,Matteref:national concern, and even.a'source of?
ecOnomicAsenefit.39-As a consequence Korea shocked Japan by issuing the
Presidential Proclamation'of.Sovereigntyever the. Adjacent Sea on January.13, 1952,
which preceded the ebolition'ofthe'MacArthUr Line by three months In substance,
the declaration closery resembled:the'Peruvien Decree of August 1, 194.7....The--.1.:
extent of,sovereignty,thus claimed unilaterally by 'Korea ranged from approximately',
20 to 200 miles from thecoasts:of,Xerea and was delimited by what came to be ,
?called ."the Peace Line' (map ne.'II):allegedly.intended to keep peace with Japan
by' avoiding conflictS..et-sea.''Thusbegan,the fishery' disPute between- Japan
Korea, which lasted fourteen bitter years.ofeonfrontation before it was finally._
settleilrin the form of a negotiatecLagreement in 1965 when friendship between-th&-
two countries was officially'restored_for the.firtt time since 1910.9.
2. Japanese-Korean Fishery Dispute- (1952-55) end-Its Settlement-
-"
:The Korean declaration ofA.952,mat met with a strong protest by Japan within'
a week on' the ground that it Violated the freedom of the high seas. Protests '
were also served on Korea by Great Britain,' Chinalend.the United States because
.of what they asserted tebe-extravagent:unilateral:claims? But it was Japan-,
as a traditional fishing state and one of 'Korea's nearest neighbors,. that was the
most disturbed by the .unexpected advent of what_ appeared to be an East, Asian'
.
--version_of.theiLatin:American ClaimS:to extensive maritime jurisdiction. Concern.
in Tokyo was especially acute.becaute of the impending withdrawal' of theilacArthur
Line, which would have:freed.JapaneSe vessels to fish in. Korean coastal' waters.
From the Korean standpoint, however, it was a distortion of international law and
justice for Japan to attempt to-destroy.Koreammarineresources for the second ..
time by relying on an empty cliche entirely unpersuasive to Korea: the freedom
of the high seas. The defense of Korea was invariably accompanied, nonetheless,.
.by "well-established international, precedents" and. "the. need Of.safe- ?
guarding, once and for all, the interest of-national welfare and defence," as
asserted in the Preamble of the declaration. BY "precedents" were; Of course,
meant the Latin American Claims, -even though.it.was yet to be seen how. well
they were established,41 and by "the need of national defence " the accentuated
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?
?
?
. 'war-time situation:Of.-Korea-under.ideologically hostile circumstances. On the
face of it, the controversy thus assumed the form of a legal dispute, whereas.
it was essentially apolitical dispute between a resentful liberated colony, and.
its !'unrepenting" former.ruler thatwasbeing argued in the polite lapguage. of .
international law andaiplcmacy.-It nay also be added that the political naturee%
. of the dispute :had its origin in the hatted and distrust of Japan which was so
deeply rooted ireihahearts of the: Korean :It vas further dramatised by?
the dominant influenee-of a pereonality whose twelve-year leadership (1948-60)
was characterised by unmitigated enmity against Japan. . "Anti-Japan-ism" was
made literally one of the two nationalepreoccupations, the other being anti-
Communicm.4.2 ?
. It was:clear,from.the-begihning,'es Japan could easily imagine froM other-.
. -indications, that -the Peace Line,waseloingto be enforced by .Korea-as rigidly ea:
it coeld:e The. declaration wassupPlemented by the Fishery Resources Pretectia67
.Law43 of 1954, whereby,fiehingWithinethe delimited zones was placed under
regulation by?the-Korean-governmeni.. All Japanese fishing vessels foundoperatingl
-withinthe Line weeeeeized-by Roteancoastal patrols, their catch confiscate:de.' '
and the; prew tried under Koeean-leweieThese Measures were presented as a reneWede-
effort by Korea to prevent itamarine-resources from being depleted by Japan_e:
again,.for.ehe.postewar'seizure of Japanese fishing vessels was by.noepeans:
anything new in northwest Pacific waters. .There had been seizures by China. since
9413, ? by-Korea since 1947, and.byeRussiaesince1946, when they were found...
:violating the MacArthur Line oretheeterritorial.see of the coastal states. e. .
Between 1947 and 1964Aehe-year'precedingethe.eettlement of the dispute with:i--
Japc
.n), Korea seized -and 3,929-fishermen. This-may.be compared with
'.:the seizure by China of 227 Japanese:vessels, including' 31 by the Wationalis ee
-
regime during 193-49, and by.Ruseideof-1,114 vessels up to the same evat:eIn-
.1952. when the Peace?Line Was declared,..-only televeseels with"-132 fishermen were-
seized by Korea, although as many as2,400 with' 38,030 fishermen were estimated-
to be operating within the Lineeetheir catch amounting to approximately US$20:
e million, according to the JapaneseeForeign-Ministey.44-.
The relations. of the two countries went-from bad to-worse:as. Korea continued
.to seize-Japanese fishing. vessels.. :But it was not only the seizure itself but
? ? :aleothewayAt was.respanded:ielby?Japan that cane to intensify the strong .
-feeling against each other. Korea was-often irritated to find so many Japanese
vessels audacious enougheto be fishing in waters so close to its coasts a'
be easily, spotted from' the shores.' e Yetet times the Korean patrols'hadto
abandon hot pursuit, finding themselves unable to catch the faster Japanese
?vessels. But what contributed highly, to the deterioration of relations was not
- the series of charges and counter-charges exchangedebetween their governments,
.eorthe_dpapeeete races' on the sea, but the variety of retaliatory measures which
--Japan began to launch against Korea in. search of e. breakthrough in the
confrontation. The difficulty for Japan .as that it. had diplomaticeeelations
.with none of the three-"seizer states,"45- and the -nature of the fishery issue
.with each of them such that it could ;not be considered in isolation. This left
it with few alternatives but to press hard-on the most vulnerable party, which .
happened to be Korea'. 'Retaliatidn:aeainst Korea was carried out in a number of
-wayse sometimes in vain, The-firetvictims.of.Japanese retaliatory pressure were. .
. the 600,000 Koreans residing in Japan,46 who had to face every conceivable form
Of discrimination against them. Koreans accused of illegal entry into Japan
were subjected to cruel mistreatmentein:reprisal fotthe'elleged,eiel?greesly
-exaggerated, ill-treatment of-Japanese fiSheemen serving their terms in Korean
. prisons, 0dcasionally.groups were, repatriated, usuallyon a head-count basis,
;but the problems of_Korean residents in Japan became worse between 1.949 and 1967
? e-e- , ?
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*hen Japan repatriated 9,00,0 of them to North Korea on terns arranged.with. ?
Pyongyang but not at all acceptable to Seoul.47 These political retaliations
'were further. aggravated by Japanese - economic pressure against South Korea. At
times, Japan refused to import Korean- sea products and to export fishing gears:
and nets to Korea: So long as each side sought. to indulge itself in anything' '73,
-that would displease the order, the prospect of settling the fishery issue and
therebY restoring' friendship had to remain bleak, , ?
. .
Amid ever7Trowing outcries of protest against each, other, however, circhm-
stances had by the beginning of: the 1960's begun to Change considerably,. to ? '
that neither of them could keep' on- Calling the *other' a 'bluff.,. Two 'points itay,
be emphasized in this regard.. ? - ?
. First, from the viewpoint of the international law of fisheries, the dispute"
hinged basically on the nature and ,extent of a .coastal state's preferential .
-right to manage the living resources of the .sea-adjaCent to Its coasts. The
-evolution of this 'newly-emerged ' concept may be briefly noted herefThe ? ..- '-
individual claims' of Some Latin .American countries, which -were motivated. by.. the
Truman Declarations of 1945, assumed a more definite basis as a regional claiin
in 1952 when the. CEP states. (Chile, Ecuador and:Peru) at Santiago proelaimed.
"as :4. principle of their maritiMe,poiicy that each of them pessesses. sole
sovereignty and jurisdiction over the area of the sea adjacent to the-coast:Of '?
its own country and.extendincLnot leas that two hundred nautical miles." Dy"
1956 this Santiago- principle: had.:' spread to Other- c ntr ies of . the region.'S- ?
and . attracted support. elsewhere.' :The, issue: had ceased* to' be a- regional one, when.,
it
it Lecame One of, the important. topics for consideration by.the 'International:
Law Commission in 1952 and by the Technical Conference on 'the Conservation of
the Living Resources .of the Sea held at Rome 1955;-- both Under the auspices
of the United NationS:42. -Witlithe adoption of. the- four Geneva Conventions on -:-
the Law of the Sea in 1958,- the:special:interest of the coastal' state in the,
maintenance Of the ProductiVitiv of. the 'living resources of the high Seas:'
near its coast was expressly recognized, namely, -in .Arts. 6-and 7 of the Fiahing::
and Conservation Convention. This definition was satisfactory neither to -
Korea, because' it was net strong enough' to justify the Peace Line, nor. to Japan,: -
because it was not weak enough, to invalidate the claims of Korea, but was .
nevertheless meaningful 'enoughto suggest lines along which "their dispute could
be settled. .
'Second, in Korea the 1960'S began with two reVelutiOns, ' One in 1960 and the-
other:in 1961 With' the first ended .the rigidity' of - the anti-Japanese posture ?
in leadership, .and With the second began a strong desire to achieve economic' .
growth, .for which restoration: of friendship with Japan was .deemed necessary .and
desirable In the ::face of mounting opposition, often -inspired; by 'recurring:- .
resentment against Japan, the second new governMent acti'Vely sought to break
out of . the deadlock. - In doing so, the biggest obstacle was, always the fishery
issue, which had been blocking settlement of- all other major. issues, such .as' the'
legal status of Korean residents. in :Japan, property .claims by Korea, and the -
repatriation. of Korean cultural assets from japan. Once Korea felt a .strong
urge to .enhance- economic relations With .dapan, llowever fishery negetiations
took place .in a. spirit of genuine willingness to. seek:a compromise. .
It was mainly by virtue c f these two changes --.one legal and eXternaL
and the other political and internal from the standpoint of Korea r,r, that in 1965_
, the two countries finally 'came to terminate their confrontation. and re-establish
. normal relations-with each:other- for the first time in half .a Century.- It took
no less than fourteen years of strenuous efforts during which as many as seven .
rounds .of talks Were held- after 1952, with each of the first five ending in .sheer
frustration and in exchanges of .trivialitiesand 6i/en abuse, 'The .iitles of the'
? :
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?
five major treaties, which were?supplemented by various annexes -- twelve for
? the fishery treaty alone -- reflected the historic importance:and drama, as '
well as the outcome, of the strenuous negotiations which produced them: Agreements
on Basic Relations, Property Claims, Legal Status of Korean Residents in Japan,
? Cultural Assets and Cocperation, and Fisheries.?
A. Features of the Treaty:
?
The treaty authorises each party to establish an exclusive 12-mile fishery
?
zone along its coasts and delimits a'joint control zoneadjacent to the exclusive
'Zone of Korea. (nap no. II) The numerous provisions of the treaty and its
supplements therefore focus largely on the provisional joint-regulation of inter-
fishing within the joint control zone (map no. II). There are two points of -
great imnortance.: First; the resources within the joint control zone arc to be
Shared on an equal. basis as a provisional-measure. Second, each party is not to
interfere with the fishing vessels of the other, even if they are suspected of,
or even found to be, violating the treaty within the joint control zcno; All
that can be done is to notify the other party of the suspicion or violation.- /he
treaty is thus characterised by the exclusiveness of the fishery zone of each
party' and by the two unusal features, as noted below.
' Exclusive Fithery Zone : The 12-mile fishery zone has become ,a fairly.common-
?
.practice-arceTe a?large number of coastal states. There are now as many as sixty-
two "12-milers"-including those that claim the 'saMe.e.ktent43f territorial sea.
In addition, there are nineteen Countries whose territorial seaor fishery zone:.
extends beyond this limit. Thus, according to a survey of 123 independent states.
and other political entities no less than ninety-six of them limit foreign
fishing within 12 miles of their coasts.l. The restrictions they impose on
foreign fishermen vary according to season and area of operation. In addition
to the principle of phasing out foreign fishing in new exclusive fishing zones,
there have emerged different combinations' basedon the abortive Geneva principle
of the so-called "six plus six" such as 1! three plus nine" (U.S.), "nine plus
three" (Mexico), and even "ten plus two"-( Albania and Yugoslavia). The Korean
.fishery zone is not Only -a departure.from the Geneva formula but-also en in-
corporation of the post-Geneva trend. In the conteet of the Peace Line declara-
tion,. however,. it was a:significant retreat and therefore deeply regretted at Its -
inception. From the standpoint of Japan, the retreat on its part was alS0-1;
significant in the sense that this was the first occasion at which it formally .
agreed to recognise: the claim i of a coastal state beyond the.traditiOnal limit
.of three miles, either for territorial sea or for fishery regulation. Recent
:indications now show that it is ready to retreat further from its position as the
lonely flag-bearer of the traditional three-mile limit and to compromise with
the general trend in the law of _the. sea,....e:
Distribution of Resources: The arrangements.to sharetheresources of the
joint control zone on an approximately equal basis also respresent a rather rare
example. A precedent may be seen in the Fraser Rivesockeye salmon fishery
treaty of 1937 between Canada and the United States. Examples based on
predetermined.quota system other than. a fifty-fifty ratio seem to be more common,
.as for example in the International Vhaling Convention of 1948, the-Northwcst
Pacific High Seas Fisheries Convention of 1956 between Japan aad Russia, and the
United States.53
North Pacific Fur Seals Convention of 1957 between Canada, Japan, Russia and the
In most situations, a fifty-fifty ratio. of distribution would
appear to be perfectly fair. Japan, relying on its dominant fishing capability,
has always .sought to maintain a system of free competition everywhere. For Korea
this was considered an Unfair system, for apart from the oreat disparity of fish-
ing technique between Korea and Japan, the competition was to take place not in
the distant open sea but in the coastal waters adjacent to its own fishery tone.
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In general, the adoption of a particular ratio is a matter for negotiation ?
between the parties concerned, but just as important-as the ratio itself iS the
technique of maintaining it in a reliable way.-- In this connection.- the Japanese-
Korean treaty sets a maeimum annual catch on each party for specified major types
of fishing, namely, 150,000 tons with a 10% fluctuation. But the only way for
one party to determine the amount caught by the other is to rely on the quarterly
reports to be eXchanged,41opefully-in good faith. Certainly it is not so
portant to ascertain how much has been caught as how much is being caught. Ar- ?
rangements to conduct occasional prearranged joint inspection of operations and. -
landings to not seem sufficient to meet the ultimate purpose for which the treaty .
was concluded.
' Enforcement: One of the first steps to enforce treaty provisions Within
joint regulation zones is to authorize each 'party to inspect suspected .6f-fenders
of the other. Under current fishery treaty practices, the scope of this, right is
confined to visitation and arrest of offenders, but jurisdictionforproseeution
rest solely with the state to which the suspected belong. Under a system of
joint regulation, it is only fair and proper to provide the means for each party .
to ascertain violations of the treaty. In the case of the Japanese-Korean treaty,:
however, the coastal state is denied: this right. -Jurisdiction for prosecution
rest On the "flag-state principle," whose origin --still-v-0re its legal nature:,.
within the international law of fisheries -- is obscure and misleading. The
exclusion Of this right explains Japan's deep concern to relieve its fishermen,:
of the threat .of seizure.by Korea-, in-contrast to the arrangements in other fish-
ery treaties to which Japan is a party, such as those with Russia, with Canada
and the United States, and with China.54
B. Appraisal and Prospects
By any standard, the fishery treaty of 1965 between Japan and Korea
representsoneof the most complicated of its kind in structure, the principal
text being supplemented by ft:42r exchanges Of notes, four verbal notes, two
letters on non-governmental arrangements, a record of discussion and an agreed
minute. Undeniably the authors "erred" on the side of complexity, whether by
necessity, design or accident. In addition to the exceptional features neted
above-, it is interesting to note a curious omission: althouch the treaty is. t
clearly intended to supersede the Peace Line declaration, no 'referenceis found .
to this effect in the text. Korea has even.held that the treaty did not in any:
way affect the legal nature of what it has been called upon to eliminate. So far
there is no evidence to support that it has changed its stand in this regard. It
would have to be admitted, however, that the prospect of reviving the Peace Line
from its present dormant status is dim.5 If, because ofits negative features
or what it has left unsettled, the treaty has failed to become an ideal alter-
native to the Peace Line as the parties would have preferred, it is only fair to.
measure its real value in terms of the fact that it has effectively settled so
acrimonious a dispute. This is a genuine contribution to the. cause of law and
order in the international community,-and this accomplishment alone is sufficient
to outweigh the effects of any controversy on its merits or demerits.
" In 1965 when the Japanese-Korean fishery treaty was concluded together with
four other major agreements, Korea found itself with a limited choice. Politico-
economic considerations had to be allowed to take precedence over rigid adherence
to its fishery interest, which, as a, source of continuing grievances against ?
Japan, had been blocking restoration of friendship between the two neighbors.
lith their relations thus normalised, the way'was rapidly paved for increasingly.
closer economic exchanges, from which both of them have benefited, especially
Korea which has gained unprecedented prosperity since then. The inter-fishing
? ?
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. . .
?
within.the joint, control zone has created little friction between their fishermen
whocould hardly stand the sight of each other- prior. to the conclusion of the.-:
treaty. In December 1970 when the five-year mandatory period of the fishery '
?
treaty was to have expired, neither side chose to exercize its right to give thie
one-year notice-of abrogation. Nor has either indicated any intention to do So
since. Furthermore, the provisional character of the various stipulations,
received less emphasis with the passage of time. From theseindications, it
seems safe to say that the fishery issue will continue to remain subordinate '
? ?? ?
.larger issues by Which it was overridden in 1965. ?
In the current wake of international preoccupation with the need to ensure
equitable sharing of the common heritage of mankind, however, the East Asian' ?
countries have begun to extend their maritime jurisdiction, in Some cases
beyond the seawakd limits of claims by others. So far they are preoccupied main-
ly with the delimitation of their continental shelf boundaries. In duercoured,-.
this expansionist trend is bound to present Korea with another choice to make,'
which is basic to and more permanent than the matter of its exclusive fishery-
zone vis-a-vis Japan: it would need to define the extent of its territorial sea:.
It happens to be the only state in the region that has not done so. The highly
irregular indentation of its coastlines-as well as the presence of over 3,000
islands along the west and south coasts would sufficiently justify the adoption'. .
. of straight baselines. Korea is of course aware that it's continental neighbors
all maintain a 12-mile limit,- with Japan readyto compromise its position, of_the
traditional 3-mile limit, and that in drawing straight baselines it would have a
recall its treaty commitment to Japan, even if only in relation to the exclusive
fishery zone, _Article 1(1) of the treaty stipulates that straight baselines -
should be drawn in constltation with the other.paty.56- ' -. , -
?
? ,
Korea's decision on the extent of its territorial sea will have to be made
With reference to a few important points. First, its timing could not possibly
precede the planned Third, Law of the Sea Conference of the United Nations,
scheduled to begin substantive formal sessions at Santiago in 1974.- Second, with
regard to its, extent, there seems to be little reason to expect Korea to adopt
one narrower than 12 miles, unless the Santiago Conference happens to adopt one
much wider, improbable as the chances seem to be. Third, decision on the extent
of the territorial sea will bring about the "honourable retirement" of:the Peace
'Line. Fourth, in adopting a 12-mile territorial sea, Korea would haye.to_give: :
careful consideration- to the problem of straight baselines in light of the fact -
'that the fishery-treaty with Japan has, along part of the Korean coastline,
specified four straight baselines from which the 12-mile fishery zone of Korea
was measured (map no. II). Unless the new ones for the territorial 'sea of Korea
happened to coincide with those agreed upon with Japan for the purposes Of the.
fishery treaty, their legal status in relation to the existing arrangements would
give rise to some controversy. If even one of the territorial baselines happened
to fall on the landward side of any existing straight baselines, it would seem
that Korea was bound to allow Japanese fishing within part of its territorial
sea, as long as the fishery treaty remains in force. Difficulty would also arise
in deciding whether Cheju'ISIand,the largest island end the smallest province
? of Korea situated about 50 nautical miles scuth to the mainland, may be placed
? within or outside the baselines. . As a. matter of fact, arguments on this point.
were so strong during' the negotiations of the fishery treaty that it had to be
? left-to.a provisional arrangement to include it within Korea's exclusive fishery
jurisdiction (map no: I). The provisions of the Geneva Convention on the . ?
Territorial Sea and the Contiguous Zone,. Art. 4(2) and (4) in particular, are
open to differing interpretations on this issue. From these observations, it may
seen that the fishery treaty retains the potential to be a source of controversy
not just over fishery issuesbetover problems of maritime jurisdiction in general.
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? II/: FISHERY RELATIONS BETVEEN CHINA AND JAPAN
7
Fishing problems between China and Japan in theYellow Sea and the, East
China Sea are regulated by non-governmental arrangements. The first such-agree-.
nent was signed in 1955, the second,in -1963, and the third in 1965. Currently ?
in force, the third is a revised version of the previous two and has been supple-
mented since-1970 by an additional agreement to regulate seining operations in -
certain parts of the treaty area. The politico-legal background of the fishery
relations between the two states is extremely complicated.
In December 1950, Japanese fishing vessels operating Along the Chinese':
coastal waters in the Yellow Sea and the East China Sea found themselves open to.
seizureby the People's Republic of China. The first incident took-place 09
December 7 when on of them was seized in the :middle Of the East China Sea.
As in the case of earlier seizures by the Nationalist authotities--thirty-:one--
Vessels during 1948 and 1949 7- the reason for seizure was made cleat from the
beginning: violation of the MacArthur Line. In the absence of diplomatic-re-
lations with the People's Republic, however, Japan was left with no means to
protest effectively against the seizure, much less to prevent it. Up to April
1955 when a nongovernmental fishery agreement was signed in Peking, the number of
Japanese fishing vessels so seized by China rose as high as 158 with 1,909 fish-
ermen.58 The basic.cause of shch Unfriendly fishery relations was of course to
be found in their rapidly detetipratingpolitical relations as a result of Japan's
pre-Taiwanese policy, a policy which Was inevitable after the outbreak of. war in
orea in 1950. The conclusion of a peace treaty with Taiwan in 1952 was one of
the major factors that intensified enmity between Tokyo and Peking.
Under the circumstances;:therefore, the settlenent of any issue with China
had to be attempted through private initiative. Thus the Japanese fishing in-
dustry itself became preoccupied with the search for freedom from seizure of, in
a term fondly used in Capanifor.safety of operation. An organised movement
began in September 1952 when there was formed in Tokyo the so-called Japan-China
Fishing Entrepreneurs' Association representing those with marine fishing intere0:
as-well as friendship with China.59 The movement gained sympathy among local
fishing interests, especially those in the vest of Japan, and became a national
endeavor by 153. This movement at home coincided with changes taking place in-
the international political environment; In 1953; the 16orean War ended in the -
-form of 'a ceasezfire, thereby easing tension in the Yellow Sea and the
East China Sea.: In 1954, China demonstrated a peace-oriented foreign policy with
a five-point peace principle,which was first applied in its dealings with India.
By October 1954, it was fairly certain that fishery issues could be discussed
in the spirit of cooperation at an inforral level. A month later the seven major
fishery organisations of Japan formed the Japan-China Fishery Association of
Japan in Order to open negotiations withlts Chinese counterpart through the good.
offices of the People's Diplomacy Council of China. Beginning at Peking on -
January 13, l955,. the negotiations lasted for three months, putting the Japanese
delegation to astrenuous test of tenacity and patience. Finally, they ended on
April Smith the signing of a non-governmental fishery agreement between the
Fishery Association of China and the Japan-China Fishery Association of Japan.
It was to remain in force for a period of one year.
2. Structure of Non-Governmental Agreement
. The agreement consisted of ten documents altogether: the principal text
appended with four, equally-binding, annexes, two memoranda, two exchanges of
letters, and a joint communique.60 Six fishing zones were established off the
?
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. . .......
? Chineses coasts, with the conditions 'of motor trawl operations specified in terms .
of size of fleet-and the length of season for each. A seventh zone was also
proposed by China to be establishedseparately in the middle of the sea; adjaoent
to the Korean Peace Line, on the.ground_that'a large concentration of small
croakers takes place there during the winter. In face of strong opposition'by-
Japan, this pioposal-waslaubordinated'toaninoperative entry in the' Memoranda.
From the viewpoint of the-international law of.fisheries,:hoWever, the two ?
letters exchanged between the delegations were particularly significant.. Zapan,- 4
agreed, even in an informal,way,torespect.the.exclusive measures which the r
Chinese government had :taken in.theiinterestof maritime security and conservation
Of fishery resources in the YellowiSea and the East China Sea. In fact,-it-was
because of these unilateral Measures,. as noted belew,-that the.broad,offshore
areasaionO.the Chinese coasts were "excluded from the treaty area lArt..,1.and_
map no. II). :..
? . .
. China's Unilateral' Claims
:In the 'course ofnegotiationsthe Japanese. delegation was greatly astonished
to be notified. by its Chinese counterpart that the.following three military zones
and the OenservatiOn-zone:originallyestablished by the Chinese government
izV
1956 would apply to Jsp4nesefishermen.as.well,namely..(mapino. 1.1): ..
(2.) The Military :Warning Zone in the northern part of the
:Yellow Sea, in which Japanese fishing vessels would not'
be admitted except by permit of the Chinese government;
.(2). The Military Navigation Zone in the coastal Waters: south-
. of Shanghai,-in.which.japanese fishing vessels would not. ?
be admitted, at .
(3) The Military Operations Zone in the waters north of
Taiwan, and south of the 29th northern latitude, in which',.:
Japanese fishing vessels would enter only at their own
risk; and
(4) The East. China Motor Trawl Prohibition Zone along ther.i
.'coastalWaters.of the Yellow Sea and the East China Sea ..
for conservation of fishery resources. in which trawling
by the Chinese as well as.Japanese fishermen was banned.,
. .-. . .
. . . . . .
Though the exact dates'andseurces-Of:these three military measures are yet to be.,
ascertained,- China's:muitive in tightening its maritime security was no.doubtto ,
cope with, the tension arising from' its own involvement in the Korean Nar.- But th:.
military purposes. for Which they were established,: though now less imperative, .
overwhelmed the Japanese delegation's attempt a to reassert.thefreedoM of-fithing-
on the.high seas. Furthermore, there was :the technical difficulty for a. private-.
delegation to contest an "act of state" by a foreign government. .The Japanese.
delegation had little choice but to agree to comply with these restrictions with7
?the understanding that' China would apply themt.o all shinsregardless Of nation-
ality.
_ . . . . .
The' East China Motor. Trawl 'Prohibition Lind r...- Which was sometimezioalied
. _
the Mao Tse Tung Line, in the PeisOnal fashlon'of. the NacArthur Line, te'Vq1Ce
Line, theClark-Line, and the.Dulganin Linel:,- was drawn by.the.Fisheries. _. ?
Management Bureau of the East China .Military Aaministrution committee...on,Docember
. 16,1.950: It was a provisional:conservation measure subject to.alteration by.
'cleneralle;rovisions to be made 'by the central government (Para. 13). Originally-
. two separate lines:.were.drawn,:oonnecting twentynine.base-points, On from the:
? south .of the Pohai.Bay to:the.nOrth.of theiTaiwan.Strait andthehother.around ?
.. . . .
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'Taiwan. It is important, therefore,' not to.overlook the fact that the line as spec--
if ied in the agreement of 1955 was an entirely new one, said to have been drawn in
1954 to replace the original one of 1950. This new line with only five base-points
was much simpler, beginning from the east of the Shantung Peninsula to the 29th east-
ern longitude, but was more extensive in-terms of distance from the coasts of China.
(map no. II). It is not clear whether the line enclosing Taiwan had been abolished
?or revised in the re-drawing of 1954.62
? '-:
.
As to Japan's acceptance of the prohibition line, it is-of interest to note ?
that at first China proposed to divide with Japan the entire fishing grounds of the
- Yellow Sea and the East China Sea by means of a joint control buffer zone between
the 124th and 125th eastern longitude This proposed division of the sea as well:as.
the delimitation of the seventh fishingzone Japan had to oppose strongly not only
because of their limiting effect on its fishing rights, but also because of their ,
bearing on its fishery relations with Korea. The 124th eastern longitude happens to.
coincide with the western margin of the-Korean Peace Line over which an acrimonious
dispute with Korea had begun only three years before. ?
' During the negotiations, the Japanese delegation took great pains to challenge:.
the legality of-the motor trawl prohibition line, arguing that the.domestic-laws of :....
a state cannot bind the fishing vessels of another on the high seas. This argument,
was not at all persuasive to the Chinese, who not only repeated the incompetence of',
private delegations to discuss such an-issue, but also emphasized that a state's
conservation measures belong-to its domestic affairs and do not require the con-
currence of another state.63The'protracted controversy over this and the three mil-.-
' itary zones brought the negotiation almost' to the point of break-down. .But because
of their determination to 'insure safetyotoperation-fortheir fishermen, the Japan-
ese had to resign themselves to what may be called a second version of the absten
tion principle, whereby they would of their own accord keep their fishermen from ?
, operating within the prohibited acme.
? .4. Extensions and Revisions
sr,
. .
The first agreement of 1955 was extended twice; in. 1956 and 1957, at apan's
. - .
request. upon the coming into force of. the agreement, -the number of Japanese fishri'
ingvessels-seized by China dropped virtually to nil; only three were seized be-
tween the middle of 1955 and early 1958. When the political relations between the:'
two parties deteriorated due- to China's.distrust of Japan's proTaiwanese Kishi .
government; however, China ,not only refused in June 1958 to extend the agreement
which was due to expire then, but also resumed-the seizure of Japanese fishing ves-
sels that violated its security and conservation measures:64
China's refusal to extend the agreement does not seem to have been entirely -
due to political reasons. 'During the early.months of 1958, there was marked in- -
crease in the number of Japanese fishing vesselsviolating the agreement. Further--
more, the disciplinary actions which, as the enforcing agent of the agreementon the
Japanese side,- the Japan-China.Fishery Association of Japan took against the Japan-.
-ese violators were entirely perfunctory. For.instance, between April 1955 and the -
end of 1957, the Japanese-Fisheries Agency patrols found as many as 196 Japanese
Vessels violating the agreement, but only forty cases were reported to have led to.
punishment. During the same period, the Chinese spotted 273 Japanese Vessels and
notified their Japanese counterpart for proper action, but only eleven cases were
reported, to have led to punishment.65-- '
_
On the other hand', Japan seems to have anticipated China's refusal of extension.-
The Japan-China FiShery ASsoCiation-ofJapan had prepareduhat it called the .
. .
Pro-
visional.Regulation for Fishing Operations and put it into: effect immediately- upon
'expiry of the agreement'on June 12; 1958.66 This.was a form of self-restraint on the '
.part of Japan, which, in the absence of any regulatory a::rangement with China, the
Association imposed on Japanese fishermen operating in the former treaty area..,. This
? Regulation was so faithfully observed by the Jan:Inese fishermen-that, furing the
'five years up to November 1963 when a,second agreement was signed, only five Japan-
ese vessels were seized by china. In'addition to this voluntary measure, and in- .
formal reciprocal understanding was also reached between the parties on October 31,
'i959, relating to the provision of emergency shelter for fishing vessels in distress..
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68
The second agreement signed in Peking on November 9, 1963, was made
possible as a result of improved trade relations between .China and Japan and was
'basically the same at the first, with only minor changes required to bring it
up to date and to-Make it more-practical. First, the new agreement was to remain
in force two yeare*instead of one. -Second; the six fishing zones were marginally
adjusted in terms of latitude and longitude, apparently to comply with the rotor .
trawl prohibition line as revised 'again in July 1957C9 and. with the 12-mile I .
limit of China's territorial sea announced in September 1958. This meant that the '
three military zones had also to 'be adjustedaccordingly.? Third, the prescribed.
size of.the.Chinese'fleet in the 3rd and the 6th fishing zones, which in each
case was smaller than' that of the Japanese., 'was' increasedsto parity this 'time,..
Fourth, 'for the protection of the sea-bream, the period of operation in the. 4th
zone was cut down 'from seven months to one, .Ii,shOuld'also be noted that' in
negotiating the Exchange of.MeMoranda the Chinese delegation again reminded
its Japanese counterpart of-the need to regulate operations in. the seventh fishing:
zone, in order' to protect the small croaker. This was accepted by the Japanese,.?,
but no actual measure was agreed upon.
' ?
. The third agreement,.70' .alsO.basically.the same as the second agreement-and,
currently.in.force,.was signed.in.Peking on December 17, 1965, incorporating':
three further restrictions on Jananese.fishing in the treaty area. That the
restrictions were going, to be more.substantial this time that in the previous.
.renewal was .indicated by Chinale:preference of'a new agreement to a revised.ei7
tension of the second.agreement,Firet,-the 1st and 2nd fishing zones were,'
extended eastward by fifteen minutes of longitude each. Second:protective..
:.-mearures Were adoptedforyoung.fiehes:by:limiting the mesh -Size of trawl nets
for certain species :Yrhird, Japan had to'accept.without reservation what China
had. proposed for the thrid timet 'in the isolated lth zonedurinq the four months.:'
beginning with October, the number of trawlers could not exceed eighty each.
. The agreement was also to.remain'in'foreefor two years, 'but at.the
'this period it was extended' by 4 yearim 1967 and 1968.' At each Japanese requeSt.
. for extension, China made it clear that further extension would be contingent
-.upon the improvement of their political relations It was specifically pointed
out" that the extremely hostile policy of the Sato government toward China would
bear heavily on their fishery relations. At.the end of the second_extension in
December.1969,.China granted'Japan a probationary,period-of,six months up to:-
June.1970.and indicated, that further extension would depend.on'the attitude of'
the Japanese government toward China as well as on the :willingness of Japanese
fishermen to respect "the prOductivity.and the. safety.of.nur fishermen's life
and property." In, June 1970, beth Aides agreed in Peking to extend the.
for two more years up to June'1972,Amit with 'additional restrition on Japanese. .--
fishing in the treaty area:. ? ?
These additional restrictions of June 1970 may be noted' with interest.' First,'
during March And April, both sides would refrain from catching .shrimp in the1st '
fishing zone', Second, Japanese seine fishing for mackerel and horse-mackerel
in certain parts of the treaty area would be limited under terms'- to be negatiated
before the end of 1970. Third,:.Japan would pay China 20 million yen (about US.
$60,000) as an indemnity for some twenty cases'of injury done to Chinese' ?
fishermen.in the courSe of interfishing.? In June.19724.when the two-year-eXten
'Edon of June 1970 was to have expired, China notified Japan that the agreement
would be extended by a year but refused to modify the regulations on seining oper-
ations as?requested?hy
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- ?? ? . .?
..??? '
The chronicle of extensions and revisions may be summarised as below:
The 1st agreement
April 15, 1955:
May 8, 19561
May 5, 1957:
June 12, 19581
The 2nd a eement
Nay. 9, :1963
Dec. 22, 1965:
ITLIL21A-1S2SDES
Dec. 17, 1965:
Dec. 21, 1467:
Dec. ?, 1968:
Dec. 21, 1969:.
June 20, 1970:
June 22,1973:
? ..
-.Signed in Peking, 'to be in force for
. me_y_f2I. from June 12, 1955..
extended by 2.a2j221E from 'June 13: 1966.
extended by 2Le_j_92SfrOm.June.13,
1957.
expired, -
signed in Peking, to be in force for
..ro_y_g_L_rst? from Dec. 23, 1963. -
expired.
Seine Fishin
signed in Peking, to be in force for two....
narl from Dec. 23, 1965. ? .
:extended by one year from Dec. 23, 1967...:-.
-extended by one year from Dec. 23, 1968.
extended by six months from Dec. 23, 19694',
extended by,t_l_docaFj_ from June 23,
to.exoire... -
Regulation,.
Dec. 31, 1970:
.June 22, 1973:
signed in Peking, to come into force on ,
Jan. 30, 1971, as a supplement to the
agreement of Dec. 17, 1965.
to expire. '
. .
-
1.,__Rtgpletibn of.Seining Operations.,
. .
On December 31, 1970, a seine fishing agreement72 was signed in Peking, which
. -
was in fPrIn.subject and supplementary to, but basically separate from, the exist-
ing fishery agreement as revised and.extended in June of that year. Under this_,
. additional arrangement, seine fishing would be strictly regulated within the .
area west of what may, be called a second Nao Tse Tung Line. The area of the sea
so enclosed by the two lines..-the motor trawl prohibition line and this seine.
fishing regulation line?was divided:into?three-seining seines. No. Japanese -;-
zeining. for mackerel-would be allowed at all in the 1st zone.. In the '2nd and 3rd
: zones, .fifteen units of seventy-five Japanese seiners as against thirty-five units.
of 140 Chinese_.eaeh.wOuid be allotledfor the limited period of four months a year. ?
? lidditional provisions weie'also made in great-detail,, including onathat is
pparticUlarly noteworthy for its specification whereby violators of either 'side ''
may be asked.by.theobserver patrols of the other for a written statement of
? violation (para.. 6-2).. The impact of this new arrangement on Japanese seine fish.,
.. ing. may-be:teen:from the fSetthat Japan used to land over 400,000 tons of -
: mackerel a year from the Yellow Sea and the East China Sea, which amounted to a
. third -of its total annual catch of mackerel, but the fleet operating in the area
culd be limited to-half the usual. size. In contriat,--it was not until 1971.?_:.-:
?
.that China began to show, keen interest in seine.fishirig.73
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On June 22, 1272., when the two-year extension of June 1970 was to have.?
expited, China notified Japan that the fishery agreement would be extended by a
year, but that 'the'Japanese proposal. to merge the 1st and 2nd seining zonesWas.
not acceptable. .The. reason given-for.this refusal was that the merger would not
only create diSorder-in,operations?but would also affect the conservation of -'
resources.' China instead offered to allow additional units of five Japanese ?
seinets within each of these two zonesjw,in consideration of the desire of the ,
Japanese fishermen."' The Chinese'notice of:extension also included a proposal, to
hold further negotiations on fisheryLissues. However, this.was believed to refer
solely to the .problem of technical' cooperation on culturing shrimp in thePohai
Bay area.74
6. Obsetvations.
A. The Use of Yon-Governmental'Agreementss-
? :The fishery relations between, the People's Republic of China And Japan
. have always-been:parallel to their. political relations, as in the case of:Japan_
? and Korea between 1952. an 1965. :It is. certainly no exaggeration to say that ?
- "Japanese fishing interests have been used as a pawn in Asian power politics,".
as was adeptly -held'byan observer.7. X.Jrlder such circumstances, therefore, the :
Sino-Japanese fishery?agreement has. been non-governmental only to the .extent
in the absence of diplomatic relations, neither goveinment has chosen to involve..-.
-itself?in any forral.way. In order,to be practiral, n non-ovvcAalmetitni scircemen: ?
usually has to rely on-tho degree of self-westraintwhich the parties. are preparod,
.to exert on' themselves in the interest of reciprocity. Non-governmental as the
arrangement' between China and.Japanda in form, it nevertheless deals with matters,
such as.enforeement, emergency. rescue and mooring of foreign fishing vessel,..and
scientifi9'exchanges,'which,-undet'normal circumstances, would require a.formAl-'.
-treaty for proper regulation. For these reasons, the agreement is non-govern-
' . ..
? Mental faute de mieUx76.
. Regulation of inter-fishing under the terms of the agteement takes place
only along the coastal and offshore waters of China, not of Japan, and .negoti-
ations for. the agreement began at the initiative of Japan, .not of China. From
the-Japeneseatandpoint, howeyer,thp.absence of diplomatic relations with China
can not be.. to have been the only reason for leaving the agreement non-
governmental.' The problem, of diplomatic recognition apart, the government of
Japan would have chosen to remain non-committal in the fishery agreement in any
event, lest it'fOrrial.involv6menthoulditnply acceptance of.China's-unilateral
measures, such as the:three military zones and the conservation zone. this
connection,' it is of ihterest to?note?another.example'of a non-governmental- or ?
a quasi-governmental fishery' agreement between Japan and another Asian country,'
namely, the Banda. Bea tuna fishery agreement-of July 1968, between the Indonesian
government and the private fisheries .interest of Japan.77 There exist normal
diplomatic relations between these two states,' but the Japanese government ?.
appears to have been anxious toavoidanyAction vhich might be construed as
-
acceptance' of the '.12-mile territorial sea and the archipelago theory of Indonesia.
-These political problems notwithstanding,- the merit of the Sino-rJapanese.
agreement lies in the fact that, by virtue Of negotiated agreement, tension has
been greatly alleviated in the fishery relations between China and Japan and that
a standing procedure has been est.ebtisi-iea-Whereby-prOble may 'be xnetin n. '
:orderly way; not at arm's' length As'had been 'thecase before.78 The' limitations
of this non-governmental agreement. do not diminish its intrinsic value decisively,
but rather.enhance.the.desirability of a formal treaty," whenconditions permit in..
due .course.
is-
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? B. .Unilateral Claims
In 1950 when the three military -zones of China were established tension.
prevailed inthe Yellow Sea and the East China Sea mainly because of the war in
Korea in which China itself was also deeply. involved. Cf the three security
measures thus taken, the Military Warning Zone in the northeastern Yellow Sea .
is restrictive, entry-being possible by permit only; the Military Navigation Zone
'south.of Shanghai entirely exclusive;, and the Military Operations Zone north of
also restrictive by implication, .entry being left "at entrants' own risk."
It is not clear whether they were originally intended to be provisional or:
permanent. It is relevant to compare them with the Clark Line, whiCh the United.
Nations Command established around the Korean peninsula for basically similar
purpcses in September 1952 and abolished in August 1953 upon cessation of
hostilities in Korea a month before. In terms of distance from the coast as well
as in restrictiveness, both are fairly similar to each other. A significant
difference is that the Clark Line survived by only a month the tensionp from . .
which it originated, whereas the Chinese military zones are still in force after
two decades since the end.of the Korean War.. ?
The nature of maritime security jurisdiction nay not be considered against
the background of the current practice of coastal states. According to a survey79
of 123 states and other political entities regarding their various national claims
to maritime jurisdiction, there are thirty-three that maintain different types Of
maritime security measures, which may be classified into five categories by ,7
virtue of their spatial extent from the coast. Sixteen cases coincide with the-
limit of the claimant's territorial sea, eleven are wider, three are narrower,_
two claim no specified limit, and one has a specified limit of security zone but
no specified limit, and one has a specified limit of security zone but no
specified limit of its territorial' sea. It may be noted that, with the exception
of the United States, the thirty-three do not 'include the traditional maritime or
naval powers of the world. Furthermore, the security situations which occasioned
the adoption of these maritime security measures do not appear, on the whole,
?to have been as extreme as that from which the Chinese claim originated in 1950.
For a war-time measure to outlast its causal situation, however, there should be
some continuing justification. As far as the maritime security zones of China
are concerned, such justification would depend on the validity of the argument
that the 1953 cease-fire in Korea has not yet ended the state of war. The
chronic status quo --a stoppage of shooting but less than peace -- has long since
defied attempts at a satisfactory definition..G? In the absence of a suitable
objective definition; the matter is left to a subjective substitute, with all' the
risks of abuse to which military pretexts are usually widely open. In case of
conflict with the national claims of a coastal state to maritime security juria-
diction,-foreign claims to, the freedom of fishing in the same area of the high
seas tend to be placed at a psychological disadvantage. The impact of the Clark
Line on Japanese fishing around the Korean peninsula in 1952 and 1953 represents
a typical example in support of this argument, as far as it relates to the free-
dom of fishing in the Yellow Sea and the East China Sea.
? ? The East China Motor Trawl Prohibition Zone was originally established in
? December 1950 as a provisional conservation zone in the name of a local military
administrative unit, for the purpose of regulating motor trawling in the areas
- so designated. The exact date when it became a parmanentand.totally prohibitory
measure proclaimed by the central government is not, clear, though it was undoubt-
. edly before the signing of the non-governmental fishery agreement in April 1955.
.In December 1950, Japanese fishing was not possible in the coastal and offshore -
waters of China because Of:the MacArthur Line, nor was its abolition in 1952
foreseen at that time. This forecloses the possibility that this conservation
measure-by China was specifically directed against Japanese or any other foreign
fisherthen.-
? .19-
. .
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Furtherrore, the concept of a coastal state's preferential rights was yet to
emerge in.the international law offisheries, eventually to be incorporated into
the Geneva Convention of 1958 on fishing and conservation of living resources::.
(Arts. '3-7). ? ?
c.
The 'immediate motive underlying:the-adoption of the measure should, therefore, ,
be found in the' physical features of" the areas for which it was thought to be ...
necessary. The coastal and,offshore'Waters of China fronting the Yellow Sea and
the East China Sea' are so shallow and the sea-bed so smooth, forming an unusually
gentle Slope from.thomainland-of China, that the 20-fathom (37 meter) contour
line runs at many points over a hundred nautical miles from the coast. _There are:
also numerous patches of great sand banks, the_largest% being -the Great Yangtze'
Bank whose east end protrudes a1most150 nautical miles eastward into the Fast
China Sea from the estuary of the Yangtze River.- The entire -area of the sea a
enclosed by the conservation line is therefore exceptionally favorable for motor:
trawling. It is beyond doubt that,-:Unlesa. strictly regulated, motor trawling in. .
this area will not only 'deplete the resources but also destroy the. bottom feeding,,
grounds, as on the Korean side.of-the Yellow Sea were Japanese over-trawling had
ruined productivity :during the. late 1930's China's conservation measure Was
-only xestrictive:atAhd_beginhing,..but.was made. totally prohibitory on its Own
trawlers soon afterward.' In similar circumstances, where conservation needs..
necessitate the prohibition of fishing even by domestic fishermen, few coast4.
states, and certainly not Japan, would leave their coastal and offshore fishing
grounds at the mercy offereignfishermen.-
.,
?
. .
The legality of these four unilateral 'Chinese measures may be considered from.
a practical point of view. First, the circumstances which gave rise to the three
military zones in 1950 have substantially changed, raising doubts about the
legality of their continued existence. Furthermore, military need is generally not-
ohly provisional but" also completely distinguishable 'from questions -of high seas.
fishing._ The mili,tary,measures.of China will probably be put to a reappraisal,.
on the occasion 'ofthe 'formal bilateral' review of Sino-Japanese fiSherY relationt
which is expected to, take place before the current non-governmental agreement - ?
expires in June.1973. Second, in:oontrast.to%the military zones, the motor trawl
prohibition zone is based on an intrinsically stronger argument: the need of re-.-
source conservation. Though it is true that conservation is a cause which is as'
much open to abuse as to compromise,'this Chinese measure derives validity from:
three potential factors which hardly require further 'elaboration: the physical'
features of the area. it covers, its precedential character in relation to Japan,
and the preferential rights of China, the coastal state, as 'specified in the
-Geneva Convention. The second factor, the precedential character of what has been.
accepted in a non-governmental ...agreement and remained in force throughout the term
ofthe agreement will have the impact of a fait acconoli on future intergoVeraeMent.
-efforts-to ccnclude a.regular treaty to, take its place, Claims to complete.free-
dom of the high seas in the.area-Seem futile,. and it remains to he seen whether
Japan will be able. to refute the need for conservation as alleged by China.
C. Prospects-
.
Non-governmental regulation Of interfishinqlpetween China and Japan in the'-.
Yellow Sea and the East China Sea has resulted in the progressive imposition of
restrictions on Japanese fishing in the area. rIn legal terms, it has been a con-.
frOntation between a coastal state-relying.on its preferential rights and a. ,
traditional fishing state relying on the freedom of fishing on the high seas as
well as on.historic rights to fish in the coastal and offshore waters of' the other.
Due to the adnormal political relations existing among the.five.littoral states,.
it has not been possible to regulate- fishing in the area by means of.a.single
multilateral.treaty'binding on all of them,-nor could any.of them have been a party .
to all of the four fishery treaties applicable to the Yellow Sea and the East China
t--
- -?-???? ? t-
? .
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1
? Sea.82 Although eath of them is a highly ambitious fishing state, chaotic inter-
fishing and serious over-fishing are being prevented not so much by their conscious
efforts to abstain as by their cautious determination to avoid a possible "fish
war."
?
With the restoration of friendship between China and Japan in September 1972,
it has become probable that they will now negotiate a formal fishery treaty,
presumably before the current non-governmental agreement expires in June 1973.63
On the face of things, however, it is difficult to foresee a new arrangement which .
would be very different from the existing non-governmental agreements. /t would
be in the regional interest, and technically possible if not probable, to make such
a new treaty open to accession by other littoral states on the basis of reciprocity.
This done, the fishery issue would for the first time in its long acrimonious
history help to improve instead of aggravate the political relations of the
littoral states. .
IV. FISHERY RELATIONS-BETWEEN CHINA AND OTHER SOCIALIST STATES
There are two other fishery agreements to which China, as the major.coastal ?
state of the Yellow Sea and the East China Sea, is or was a party namely, the -
bilateral agreement of 1959 with North Korea and the multilateral agreement of 1956
among the socialist states of the western Pacific region.. In contrast to. the Sine-
Japanese and Japanese-Korean agreements, however, these two originated not as a
means of settling disputes over fishing rights, but as a means of cooperation-be-
tween the parties, since there were no such acrimonious disputes between them
Eetween Japan and China or Japan and Korea. Proper analysis of these two.agree-
ments is handicapped, by the scarcity of literature.' The following is based on
what is available from widely scattered.sources.
1. -China and North Korea
The fishery agreement between China and North Korea was concluded in !eking on ..-
August 25, 1959. Its purpose was to "provide for the full and rational exploita-
tion of marine resources in the Yellow Sea by both parties in a joint endeavor to
develop fisheries and relevant projects."84 The fact that the treaty area does not
include the East China Sea should be noted, but the difficulty for Korean fishermen. -
from the North as well at-from the South to operate freely in the East China Sea
Cannot be attributed to legal or technical reasons or to the absence of historical
rights, but to the abnormality of political relations among the coastal states of
the Yellow Sea and' 'the East China Sea.
2. West Pacific Fisheries, Oceanology and Limnology Research Cooperation Agreement
The multilateral agreement for cooperation in research on fisheries, oceanology
and limnology was signed in Peking by China, North Korea, North Vietnam and Russia.'
on June 12, 1956.85 The treaty area covers the Sea of Japan, the Yellow Sea, 'and
the East and south China Seas (Art. 1). A fishery research commission was
established with its seat in Peking. It has four sections dealing with fisheries,
oceanography, fresh water, limnology and protection of fishing resources. Land-
locked Outer Mongolia joined the agreement on December 15, 1958,86 presumably .
out of its interest in fresh water liMnology. China, originally the host party to
the agreement, is reported to have withdrawn from it in 1967, when it abrogated
two other multilateral treaties of socialist states at the same timejr,-
_ . .
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The Commission seems to have held: regular and special sessions every year up
to 1964.88' A number of joint research activities were also rePorted, such as a' . .
'fishing resources.survey conducted by asteam of scientists from China, North Korea
and Russia in the Yellow Sea and the. Fast China Sea, from which new winter fishing
grounds were said to.have been foundi,and a tide zone investigation conductettby.
Chinese and Russian, oceanographers around the:Eainan Island of Chind.62.
Publica-
tions of the Commission show that its research interest covers a wide range of ?
subjects.. For instance, 'the proceedings of its fifth plenary session held in ?
Peking in 1960 record. forty-one papers and:those of,the sixth :held in Ulan Bator,..
Outer flongolia, in 1961thirtV-fouepapers..90: References to papers presentedat
other plenary 'sessions are also.found-in other oceanographic literature of China.
Recent literature on the'activitiesof-the Commission is.not available,
so that, it isnet'possible to confirm whether its annual sessions since 1964 have
been held regillarly and. to what extent the agreement itself has been affected by
China's withdrawal'in 1967. It:should.be:moted in all fairness that, as the, only
multilateral arrangement for the regulation of' the living resources in the Yellow
Sea and the East Chipa_Sea, thisagreement has effectively demonstrated the de-
sirability of a regional collective arrangement for the' sake of reciprocity on
the part of all the coastal states. This agreement is the only One on the Yellow?
Sea and the Fast China See that is accesr:ion by any other state in the
region, subject to: the unanimous concurrence of the parties -- even though the.
'current political climate there is not yet ,likely.to engender such an atmosphere.
, .
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m-iosehmriv,-.
V. COMMTISIOP.
The 'Yellow Sea and the East.e.hina'Sea are'onlY a snail area of the'sea semi-
. ? ? . . .
enclosed by .China, Japsn'and.Norea..:The shallow and fertile fishing grounds are ?
most favorable for cOastal and offshore fisheries. This natural advantage often ?,,,
caused serious disputes oyer high:seas?fishing rights between the coastal statOS.,,,..A
For the past few decades, ::their Political relations have never been close enough
to ;engender a friendly attostphere sot.hat*fisheries in the area could be .jointly ? -
.regulated by all the participants?Ironiclly enough', therefore, the sea retins,-
.its productivity Partly-by virtue?Of the indiviaual coastal states' cautioup
attitude to avoid further disputes;:. This has resulted in the inequity that China'?
reaps a lion's share to the silent dissatisfaction of Japan and Korea
Currently there are four treaties which arainiended to regulate fisherles
the Yellow Sea and the East China Sea.. But none of them is binding on all the .
coastal states, nor is any state a partyto,all four. Any area of the sea so fer-
tile in living resources and enclosed by states so capable. in fishing is bound to
be exhaustcd'by connetitive exploitation..- ,Such 4 danger is not all unreal .in view....:
of the fact that the coastal states differ from one another 15 almost every'appect
of their maritime practice: for instance,, in the limit of territorial. sea, China: ?
is a 12-miler, Japan a.37miler and 'Korea an unspecific claimer; and in the concent::
of "economic zone", China is protagonist, Japan antagonist and Korea also antago.. .
'nist but for -different reasons from Japan.,:y .
,. . ? ' ' -
The danger Of resourees.depletion-can also be enchanced by some external.r.
. . .
factors. First, the continentalshelves of the area are thought to.havaalligh.
oil -potential, and explOration.is:already.at an advanced Stage..:Second, japan-and -
' Korea rely entirely on the import of oil by sea. -Japan being the biggest importer,i.
:
there' is an unbroken.cnain.of tankers linking its major tots and the Persian dulf.
pollution of the sea by oil frOMeither?eXploitatiOn.or transport will .mean an-:
other "Santa Barbara" or "Torrey Canyon" to the coastal states with.the flOW,
.;of warn and cold currents threatening to maxinize the damage to the living; '
resources.
. . Thus:it is simply imperative for the ceastal states to realize the importce...
? ' _ an.
. _
of regional arrangements for this area; since -one of them can destroy what jt will.-
. take all of:them to restore. - The step forward by China,' Japan And Korea from
bilateral agreements :to regional cooperation would not only' help to sustain the.
'productivity of sea resources, but might also serve as. a point of departure for
unity in other aspects of their?relations.-: '
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FOOTI4OTT"S ?
1. S.J. Yeh and .s. T. Liu: CIII.T501221E11.92LI'lli Tsunglun 1(natural geography of.
China) 37. (Peking, Shanqwu Yinshu keen, .19577I-7.77-istuojaiang (the ?
fatherland'socean) 3. (Peking, Chungkuo Chingnien Chu)anshe, 1956); and C. Yuant.
Chungkuo-Haian'ho TaoYU '(China' S seacoast and offshore islands) .13-5 (Taipei,-
aneh
-Haiwai-Wenku Chupe; 1957).
2.Japan Statistical Yeal2n5L12221.(Tokyo, Bureau of Statistics, Office.of.theY
Prime Minister, 1970). . .
3. 56 Okinawa (Japanese quarterly) 109 (Tokyo, Nampo?Doho EngokaiuMarch 1971)..
4. Korea Annual 1972 Seoul 1972, 324-5. ?
5. 'Fisheries in Korea 60-1 (Seoul, Office of Fisheries, 1966).. ? . ? .
6. S.C. Fan and Y.S. Chin: "Chungkuo Tunghai ho Euanghai Vanpu Tichi ti Chuon
Yenchiu" (study on the bottom structure of the East China Sea and the southern .
Yellow Sea) 2(2) -Hal./22177121212s12211 (Oceanologia et Limnologia Sinia, quarterly
in Chinese): Chungkuo Haiyang Huchao Hsuehhui, ed., (Chinese Society of: . ? ?
Oceanology and Limnology) 83 (Peking, Kohsueh Chupanshe, April 1959); and
23 Er_22/z1-onediarnnica_.? 1970, 884. ? .
7.J.E. Fairchild: 23 CollieLIZE21,152loped 1964, 691. _ . .
? 8. With the exception of those otherwise indicated, figures and other data in this
section are from Yuan: ChLILLE.2epsaaft.....13-7; szly2FLti_.9nt,..ns_g_ta;
Geographical Bulletin No. 3, U.S.. state Dept. Pub. No. 7849, rev. ed. Oct. 1970
18 (Washington, Government Printing Office); K.O. Emery: I Technical Bulletin
- 1968 13-27 and II ibid. 1969, 3-43 (Bankok, Economic-Conmission for Asia and -
Far Ea$t--- ECAFE): 1.1.17. Klenova: "Eaiyang Tichihtu" (sea-bed topography, with
abstract in Russian) 1 (2) Oceano10ia et Linnolocia Sinica May 1958, 243!.50; .
9. .Fisheries in KOrea 58: Yeh and Liu: 44-7 (footnote 1 supra); and P.S.Chang: .
'and Fan and Chin: ibid 82-5. .
Chungkuo Yuyeh shengvu T71.11/Uen ti Yenchiu (study of fishery resources of China .
359-70.(Taipei, Taiwan Shangvu Yinshekuan,?1968). ?
.10.. C. Chu; Tsukuo ti Yuyeh (the fatherland's fisheries) -4 (Peking. Tsdicheng
. Chingchi Chupanshe, 1956) and Yeh- and Liu: ibid. 51. .(footnote 1 supra). This
would, however, depend on the definition of "fishing grounds"; other countries
? such as Canada and the Soviet Union have a-larger shelf area. The coastal and.
offshore fishing grounds of China are found in the Pohai Bay, the Yellow Sea,
: the East China Sea, the Gulf of Tong King and the South China Sea. However,
. the first, the fourth and the fifth have little to do with Korean fishing, since
' ? .the former was declared the internal waters of China in 1958 and the latter two ?? .
.are not visited by Korean fishermen at all.? .
11. Chu: ibid. 8; C. T. Cheng: "Huanghai ho Tunghai Chingchi Yulei Chushi" (notes
On the economic fish fauna of the Yellow Sea and the East China Sea) 2 II).
Oceanologia et Lirmolocia Sinica March 1959, 54-6; and Yeh Liu: ibid. 51
(footnote 1 supra)._ For details on the fauna and fibre of the Yellow Sea and ?
the East China sea, see the four Research Reports, Nos. 73-6 with English and
-.French abStracts, by the.Institute of Oceanography, Acadenica Sinica, as
?
reprinted in 2(1) Oceanologia et Linnolocia Sinica March 1959, 27-60, of which
the above article by Cheng is one. For details on part of the species in the
-Pohai Bay and the Yellow Sea, see C.I.: Chang and five others: Euancpohai
Yulei Tiaocha Paokao (Survey of fish fauna in the Pohai flay and the Yellow sea)
? ? Peking, KoshuenChupanshe, 1955; this volume deals with 201 species to be found
north of the Shantung Peninsula, and an. abridged version covering 71 major
species was also put out by the same publisher in 1954.- . For an ecological.-
. survey of the "four majors," see Hs. W. Chang and Hs. S. Liu: "Shihnienlai
Wokuo Sseghung Chuyao Haichan Chingchi? Yulei Shengtai ti Tiaocha Yenchiu"
..
(a decade of ecological investigations on the four important marine food fishes
of China, ? with English abstract) 2(4) Oceanolo ia et Linnolo ia Sinica Oct.
1959, 233-41. '
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12. In the first half of 1972, China lanced more mackerel and horse-mackerel by.
means of seine fishing than it did during the whole year of 1971 (People's
? Daily, Sept. 17, 1972). On the Chinese experiment in the South China Sea, see
Asahi Shinbun (Japanese Daily, Tokyo) Jan.. 1,1.971. In 1969 when Japan caught
0,61.3,000 tons of fishes altogether, it landed 1,350'tons of mackerel and
horse-mackerel, about a third of it -- 440,000 tons from the Yellow Sea
and the East China Sea (Japan Statistical Yearbook 1970, 152). Japanese over-
fishing is said to have been particularly conspicuous in the Chinese coastal
waters off Shanghai since 1963-to the point of being accused of violating
the territorial sea of China twice in-1969 (Asehi Shinbun, ibid.): -
13. For the 1970 figures, see 34(1-2) Commerical Fisheries Review Jan.-Feb. 1972,
34; and 30 FAO Yearbook of Fishery Statistics 1970, 4 and 223. On the inter-
pretation of Chinese statistics, see.F.T. Christy and A. .Scott: The Common
Wealth in Ocean Fisheries: Some Problems of Growth and Economic Al1ocationb4
and 105 (Baltimore, Johns Hopkins Press, 1965). For the latest publishe4
figures and the future potential of fisheries in China, see Y. T. Chang.:
"Fishermen's Record Hauls" 11 Peking Review March 17, 1959, 12-3; and Chu:
ibid. 8 and 37 (footnote 10 supra). For a long-range fisheries policy of China.'
see the National Program forJkgricultural Develonment 1956-1967 (Para. 19),
which.was-drafted.in 1956 and was finally adopted in 1960 after a few
revisions; the Chinese text of this master plan nay be seen in 6 Chunghua.
Jenmin Kunghokuo rakuei Huipien (collection of laws and regulations of the-
People's Republic of China) 37-; for the English translation and comments on
its background, see Leslie T. C. Kuo: The Technical Transformation of
Agriculture in Communist China 7-10 and 241-62 (New York, Praeger Publishers,
1972) or 731 Currentbackground.Feb. 14, 1966, 1-17 (text only); and for the
Japanese translation, see the pamphlet entitled: 1956 - non kara 1967
ni itaru Zenkoku Noqyo Flatten Yoko (the national program for agricultural
developement 1956-1967) Peking, Vaiwen Chupanshe, 1960. Follow-up plans
? subsequent. to 1967 are yet to. be traced. Para. 19 of the above Program reads
(Kuo: ibid. 255 supra):
19. Raise the Output Of marine and freshwater products and develop their
breeding. In marine fishing, on the basis of co-operative organisation the
latent potentialities of existing gear should be fully tapped and the fishing-_
techniques gradually improved. Attention should he paid to increasing public
accumulation funds, replenishing and improving fishing equipMent,-and gradually
increasing the number of motor trawlers and motorised junks. Safety measures
for production should be strengthened so as to extend fishing to deep seas.
All possible water resources should be used to develop freshwater fish farm- '
ing. The work of breeding good stocks of fish and preventing and dealing with
fish diseases should be strengthened. Energetic steps should be taken to
promote fish farming in shallow sea waters and the work to breed fish, shell-
fish and aquatic grasses strengthened.
14. For the possible decline of fishing industry in Peru due to unexpected
oceanographic changes, see the New York Times, August 12 and 20, 1972; -
15. For the major fishing zones, see F.M. Han: Tsukuo ti Yuyen (the fatherland's
fish and salt) 8-20 (Shanghai, Tachungkuo Tushuchu, 1953); and for details on
the major' types of fishing in the Pohai Bay and the Yellow Sea, see Huangpohai
Chuyao ti Chunchung Yuyeh chi Chi Chishu Kaichin (major mass fisheries in the
Fohai Bay and the Yellow sea and their technical imporvement), Bureau of
Mass.Fisheries, Ministry of Fisheries, People's Republic of China_7744
(Peking, Koshueh Chupanshe, 1956).
16. XV China Reconstructs Jan. 6, 1966, 30-1,
-25-
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.17. chungkuo Tanshui Yangyu Chingyen Tsungchieh reiyuanhui.(general committee on
,
fresh water fish culture experience.of China): thungRuo TanshUi.Yulei. -
Yangchihhsueh-(fresh water fish culture in China) 47-8 (Peking, Kohsueh .:
Chupanshe,'1962);12 Feking Reviel,i. Nov. 12, 1965.3770; and Chu: ibid.:. 40..
(footnote 10 supra).. For details on the fresh water fisheries in China up'
to the mid-1960's, see-J,J.Solecki::.EcOnomic Asoctts of the Fishing /ndust
in ttaihland China 24.--68 (Institute ofFisheries, British. Columbia University,
Vancouver, 1966); and F. Bartz: II pie Grossen Fischereiraume der Welt, ? '.
Wiesbaden, 1965, 227-41.. .
- -
18. 30 FAO Yearbook of Fishery Statistics 1970; 7,9, 76 and 87.
19,:japant_1l1?.1.1970, 152-3 and 157. _
20. Korea Yearbook Statistics 1971, Office of Fisheries, Seou1,.177,
21. Ibid. 35 (footnote 20 supra). ,
22. Ibid. 83 (footnote 20 supra).'. To be exact, by -"the East China Sea" is meant
here the coastal waters south of the Korean peninsula and north of Cheju ;s,
:a relatively small area commonly known as the South Sea.
/3.' For details, see Har.kua (history of fishery in Korea), Office of Fish.,
eries, Seoul,: 1968, 742-61; and "Major:.Fishing Grounds'by-Type of -Fishing and .
by Species" (front page illustration,no. 1), Korea Yearbook of Fishery Statistics -
._
1971. Another major sea prodUct.ofKorea?is the variety of sea weeds,.but
this has little to do with international regulation of fishing,, as it grows.
:close to the shoreline,. The anglingof squids is also an important fishery.
in Korea, but this is done mostly.along.the coastal waters on the east, hence
is only remotely related to thelaresent-discussion: .
24. See Chap. 1(1);. Geographical Circumstances supra.
25.-T.W. Fulton: Sovereignty of the Sea. Edinburgh 1911,58.
26. For these historical reasons, see Hankuk Susansa (history of fishery in Korea).
. 22-3 and 69771 (footnote 23 supra. For the influence of Buddhism on fishery -in
Japan,.see K. yanaguchi:Nthofl (history of fishery in Japan), Tokyo,
1957, 16;' and T. Seiko:"..g.y_93-(history of fishery),;.,Tokyor-195,
31-r2.. . .
27. Eankuk Susansa (history of fisheryjn:Korea) 18576 (footnote 23 supra). ..
28.:Ibid.187 (footnote 23 supra). '' . ? ? . ' .
29. The text (Art. 41 only) of the 1883 trade agreement, written in classic Chinese
- after the. fashion of the tine in Korea,.may be seen in Hankuk Susansa(history
. of fishery'in Korea) 232 (footnote'23 supra); the Japanese text in full in 16 -.?
(1083) Nihon Gaiko Bunsho .(NGB: diplomatic documents of Japan) 282-9: and the
English translation in full in 77 .(1835-6) British and Foreign state Pa ers
(EFSP) 413. The Chinese text of the. 1880 fishery agreement may be seen in
Hankuk Susansa (history of fishery in'Korea) 282-3 (footnote- 23 supra); the
Korean text in ibid. 190-1; the Japanese text in 22. (1809) NGB 370-81: and the
English translation in 81 (1838-9):BF8P 261-3. The agreement in 1889wa;_-
preceded by a 9-article provisional arrangement in. 1088, limiting the amount of
Japanese fishing in areas not open .to Japan;. for its text,-see-Hankuk Susansa
.234; and the Japanese text in 21(1088) NOB 258-71. The Korean text of the 1908'
' fishery treaty may be seen in Hankuk Susansa 220-1; the Japanese text in 41-1
(1908) NGB 774-9; and. the English translation in 101 (1907-8) BFSP 1032. -.
30. This was the case with most other treaties which Japan and Korea concluded
between 1376 when a friendship treaty was imposed on Korea--the first modern
.treaty Korea ever entered-and 1910 when it was finally annexed to Japan. Korea
did not realize the implication'of. Japan's consular jurisdiction on Koreap -
territory as specified in various treaties it signed with Japan. -Where treaty!
making with Korea was concerned, therefore, Japan was simply passing on to Korea .
, what it had so bitterly experienced earlier with the Western Powers.
31. Hankuk Susansa (history of fishery in Korea) 166 (footnote 23 supra).
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.12. The Chinese fishermen were said to have also been rapacious against Koreans. .
They also engaged themselves in smuggling besides fishing. Hankuk Susanna'
(history of fishery in Korea) 229-31 (footnote 23 supra). As for the Russian
whalers, they hadbeen catchinglahales in the coastal and offshore waters of
Korea for as long as nine years before the Korean authorities became aware of
it and began to issue permit in 1393-(ibid. 227) . .
33. Nankuk Susansa (history of fishery in Korea) 369 (footnote 23 supra): and Korea
Yearbook of Fishery qtatistics 1971, 2, 13, And 35.
34. Nankuk Susansa 369. In 1971, South Korea alone caught 1.07 million tons Of
fish. Figures are not available of the North Korean catch, but it is usually
assumed that the amount of catch is considerably below that of the South, so
that the total of both KOreasA4ou1d-6till not exceed two million tons. It is
also note-worthy that fisheries in Japan began to decline since 1937 when the
Sino-Japanese Uar began, reaching their bottom in 1945 when the Second VOrld ?
ar ended. .
35. For details on this point, see T. Shimura: Nihm_222_,VSSIChiseki
V
(capital accumulation of Japanese fisheries), Tokyo, 1965, 113-29
36. Foreign Affairs Assn. of Japan: The Japan Yearbook 1939-9 Tokyo, (p.
At present the Government isrestricting trawlers in the Inland Sea, the
East China-Sea and the Yellow Sea to 70 vessels It also .prohibits
. trawlers, by special regulations, from operating in the near-by seas in
order to keep the coastal meters free from the devastation caused by the
destruction of immature fish, etc. (emphasis added). --? ,
37. For details on the MacArthur Line, see The Japan Yearbook 1949-52, Tokyo, 1952,
38. the text of the agreement, see 65 United rations Treat. Series (UrT9)
435-43.
No. 2770, 205 (/nternational.Convention for the Rich Seas Fisheries of the North
Pacific Ocean). .For details, see D.P. Johnston: International Law of . ?
Fisheries, Yale University Press, 1965, 274-82 and 239-97; W.C. Herrington?
"Problems Affecting North Pacific Fisheries," 26IELalifilifLai0t1i2/31L1952i
340-2, and "Comments on the Principle of Abstention.' Paners Presented at the
International Technical Conference on the Conservation of the Living Resources
of the Sea (UN Document A/CONF. 10/7) Rome 1955, 344-9; and S. Oda: "Yokuseino
Gensokuni Tsuite" (on the principle of abstention), I Umino Shioento Kokusaiho
(see resources and international Law) Tokyo, 1971, 117-76. Details on the
negotiation of this Convention may be seen in HicvoChonicuno
Kaisetsu (interpretation of the Canada-US-Japan fisheries treaty), Ocean
Fisheries Assn..of Japan, Tokyo, 1952; and the bilingual minutes (English and
Japanese in separate volumes) entitled Tripartite Fisheries Conference:
Canada-US-Japan, Foreign Ministry, Tnkyo, 1952.
39. In this regard, it should be noted that a Sea Defense Zone was established by
the United Nations Command in September 1952, as a "strictly war time measure
designed to safeguard the Korean coastline and to bar the Korean coast to
enemy agents and contraband." (M.".-Clarki From the Danube to the Yalu, New. .
York, 1954, 154) The Line enclosed by what was called the Clark Line was
abolished in August 1953, a month after the signing of the armistice in Korea.
Foreign ships were subject to search upon entering the blockade. Japan argued
in vain that it had nothing to do with its fishing.
40. For the text of the Korean declaration, see Laws andRernilatiortS on the rie
of the Territorial Sea, United Nations Legislative Series (UN Doc. ST/LEG/SER.
0/6. 1956 and E/8 1959). 30-1. ?
?
For a comprehensive discussion of its legal character, see G. Neissberts
Recent Developments in the Law of the Sea and the Japanese-Korean Fishery
Dispute, The Hague, 1966.
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? ? ??
?
, For the opinion. of a foreign_ observer on Korea's need to protect her sea .
.?einsources,' Igoe DA!, Brittin:: International Law for sea-Going. Officers, -.
US Naval Institute,.1956, 78-9. where?he.says::,,....-
During the years otOccupation'of_Korea by Japan, this Area was So badly
depleted by the Japanesebearwtrawlers that the fishing in the area was - '??,,,i,,ii,
practically unproductiVedue to the destruction of bottom feeding grounds
and sea grasSes. .During the war period -; nature has rectified this ----n;' ?
destructiveoverfishing and productivity. was largely' restored. Therefore, :.
from the conservationengle,'the Norean.government has a point in ad7..
vocating the necessity of controlling fishing in the area. .It might ? .
.
also be added that Korean fishermen: do not .use trawling methods but rely ..?
on hand-fiching which has no bad effect on fishing grounds. .-For the .
' text?of the fishery agreement of 1965 and its annexed documents, see 10-,
(1966) nia3___________:721-21------TterTJapaheseArulationalLaw (JAIL); and 4 International
iegal Materials (principal text?onlY), No. 6, Nov.:1966. The Engl./5h. s?
translations are notridentical'inthese two sources, having been done by :
? different translators and would therefore require comparison either witlt
each other or. with the I:orean or Japanese textS.. ?
41. Korea's was the 26th of the 36 such -proclamations made Up to.the time of 010--7:-,
1959 Geneva Conference on the .Law of,the Sea (UN Legislative Series, .15/1,, .
8/6 and Supp. - ibid.)
. 42.? Syngran Rhee: he servedthree termsin.the presidency-(1948-1960) and was -:
elected for a fourth term in 1960,:-laut was compelled -to resign in April 1960
in the face of.strong popular -opposition headed by students. He died in.Hawaii in 3.965
,
43. -tor the text, see UN Legis1a,tiEL_Lesiea,?ibid., 5234.. '
44. Figures in this se-c-a;171are 7-4-Uoted from S. Oda: 8(1964) JAIL 127-8; .9(1965)
ibid. 126;10(1966) ibid. 67; 327'-jUrisuto (jurist, Japanese monthly) Aug,-
1 1965, 17;'-andXaiyono KokusaihO?K---ozo.-(structure of the law.of'tbe sea).,
,TOkyo, 1956, 52 and 119. ? . - -..,.,?. . . .
? 45, With Russia barely since 1956 by-virtue of a peace declaration (263 UNTS.
. '-..No. 2768,''99-117) -.-,-! ':--:T.--.:'::'::7-, ; . -:.---- - ?
? 46. , This is part of some two million-Koreans drafted into mar industries in Japan:7
?
proper before 1945. At the end of the Nat, Japan was not in a Position- .
_..
?
to- repatriate then to Korea, so that,they had to stay on..
47 14 Waga Gaikono Kinkyo (foreign policy white book), Foreign Ministry of Japan,
48. For the background of the Santiago Declaration, see S.A. Bayitch, Inter-I
' Tokyo, 1970, 87-8. , .
American Law of Fisheries, New York,: 19574 489; for its text, see B. Mac :,.,._
Chesney: LI (1956) International Law, situation and Documents, US? Naval.. .,,..
? college, 19574 265,74; on CosteRica'aaccession, see B.B. L. Auguste:
,
The Continental Shelf, Geneva, 1960,-139; and for sUbseguent developments in-
.
Latin-America, see MacChesney:.ibid257-65 and 275-82;.Bayitch; ibid.
16; and II (1556) Int el:naiST.2741.--I24.S21121.1_121tfl_nar book, 66 and 275-82.
49. FOr the work of the ILC on this point, see II (1951) ILC Yearbook, 141-4; .
II (1953).217-20 and 241-69; II (1955)- 28-54; and II (1956) 290-1. On the Rome
Conference, see Report of and Papers Presentedat Rome Conf., (A/CON?. 10/6
and 7: Paras. 187 44-9 and.80-3 of Thc, 74eport, in particular).
50.. For 'a comprehensive analysis of each of these five agreements; see T. Ueda;
- "Nikkan.Kankeishi" (history of Japan-Korea relations), 1-27; T.Soaawa: "Nikkan
. Killen aoyaku" (agreement on Japan-Korea basic relations), 28-54; F. Ikeda:
."Bunkazai,'Bunka Kyoryoku Kyotei" (cultural properities and cultural cooperation
agreement), 55-75; lk. Nakamura: "Nikkan Gyogyo Kyotei" (Japan-Korea fishery
agreement),-76-104; and J. Akiba:"Bote Chii" (legal status of Koreans in JananY:-,
137-61' 64(4-5)KolcoZas5hi (international law and-diplomacy) 0
1965, a feature issue on Japan-Korea relations; and S. Oda: "The Normalisation .
of Relations between Japan and the. Republic of Korea, " 61(1). Mar.ir.47....,7.217.13a,
of International-Lau! (ALIO, 1961, 35-36.
-28- -
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51;
DecrassifiedandyPr dF
iroveorRelease201-2;09/1-2:CIA-RDP08C01297R000200130008-0
36 International Boundary Study, Series A, Limits of the Seas, January 3, 1972.
'and its AddendUm, March 31, 1972, entitled: "National Claims to Maritime
Jurisdictions," Office of the Geographer, US Dept. of State: and Oda: ibid.
1971, 376.
52. For the text, see 184 LrTS, No. 4255. 205-17: and for other details of this
treaty, see Johnston: ibid.. 384-90. -
53. For the text of the 1946 whaling convention, see 161 League of Nations Treaty
Series, No.. 2124, 72-,.111; and for other details see Z. Ohira; "Fishery Re- .
lations between Soviet Russia and Japan," 2195C) JAIL, 1-18. For the text
of the 3.957 four-party fur seals treaty, see 314 UNTS, No. 4546, 105-597 ,
and for other details, see Johnston: ibid. 264-9.
54. It should be noted that the Sino-Japanese non-governmental agreement on the
regulation Of seine fishing signed in Peking on December 31, 1970, maintains
that (see Chap. 111-5: Fishery Relations between China and Japan, infra):
"When a. seiner of one side is found to have violated the
regulations, an inspector of the other side.is entitled to
V.
demand a written material from the seiner concerned, and
then make a report to the fishery association of his own.
side so that it may notify the other fishery association .
for handling the ratter" Mara. 6-2; 4815 SCMP Jan 4-8,.1971
235-6; emphasis added!
55. The Peace Line has even been encroached upon at its southwest and by the Seine-
fishing Regulation Zone No..1 which has been established by the above Sinow.
Japanese agreement of December 31, 1970.
56. In this regard, the oft-quoted passage from the judgement of the Ang10-1?
Norwegian Fisheries Case 1951 is noteworthy (International Court of Justice
-
ICJ Reports, 1951, 132):
"The delimitation of sea areas has always an international
aspect; it can not be dependent merely upon .the will of the
coastal state as expressed'inits municipal lam. Although
it is true Oat the act of delimitation is necessarily a-
unilateral act, because only the coastal' State is competent
to undertake it, the validity of the delimitation with
regard to other states depends on international law."
57. Z. Ohira and T. Kuwahara: ?Fishery Problems between Japan and the People's
Republic of China," 3(1959) .JAIL 109.
58. See sources referred to in footnote 44 supra.
59. Nitchu Kokkyo Kaifuku Yokumin Kaigi (national assn. for the restoration of
Sino-Japanese relations): Nitchu Hakusho (Japan-China white book), Tokyo,
1959, 128; and Ohira and Kuwahara: ibid. 112 (footnote 57 supra..
60. For the Chinese text, see 4 Chunghua Jenmin Kunehokuo Tiaovuchi (People's
Republic of China treaty series: (TYC), Chunghua Jenmin Kunghokuo WaichiapU
(Foreign Ministry of the People's Republic of. China) 265-78; for the English
translation (principal treaty only), see MacCheSney: ibid. 368-70 (fcbtnote
48 supra); for the German translation with a brief remark, see Vertrage der
Volksrepublik China mit anderen Staaten (ldVRO: IXX-1-1962 schriften des
Instituts fur Asienkunde in Hcarib?arq) 150-69; and for the Japanese text, see
Nitchu Kokkyo Kaifuku SokushinGiin Renmei (parliamentarian assn. for the
restoration of Sino-Japanese relations): Nitchu Yenkeishiryo 1945-71,
Tokyo, 1971, 325-34..
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This Line was declared by Russia-in March 1956 as a provisional measure to -
regulate salmon fishing in the. Okhotsk Sea and the western part of. the Bering
Sea: Zapan found itself compeiled?to enter negotiations with Russia for a
fishery treaty, which vas signed on nay 14, 1956, a day before the regulatory
season (nay 15-Sept. 15) as specified in the Bulganin Line proclamation. ?
Though the Line was superseded by the fishery treaty even.before it_was'
applied to Japanese fishermen, it was nevertheless employed as an effectiveL
means to press. Japan. into... the fishery treaty immediately. For -
the te;:t and details, see.Ohira: "fishery Problems between Soviet Russia and
Japan," 2(1953) JAIL 1e18; and M. Whiteman: 4 Digest Of International raw,
1020-1 and 1151-4.
For the text of the originai'announeement-as a provisional measure (with
29 base-points specified latitude and longitude) whereby motor trawling within
the Zone was to be placed under regulation by the East China Military
Administration COMittee, see II Huatunachu Tsaiching Chinachi Faling
Huipien (collection of laws and regulations on financial and economic affairs
in East Coast) 1333-7 (Peking, Huatung Jenmin Chupanshe, 1951).
Three points need to be made clear .here First, the date of the announcement'
(East-Fishery-Admin-50-1758) was. given as December 16, 1950, in the above .
source, not as December 10- (Ohira-and Kuwahara: .ibid.. 111, footnote .57 supra).
or as December 6 (S4 Oda: International Control of Sea Resources, Leiden,
1963, footnote 110 at 52; and Weissberg: ibid. footnote 24-at-71, footnote .?
40 supra). Second, the Line as referred to in the 1955 aareement was not,-
one "modified sliehtly in 19540da: ibid.), but was entirely different from y?
that of 1950 (rap no. II); itremains? to be confirmed exactly when in .1954
the new announcement:vas made and whether by the same local authorities or
bythe central government. Third, the original Line of 1950 was provisional.
and restrictive, whereas in 1953 it was notified to the Japanese delegation ?
as!permanent and nrohibitoryiebut not so "since' 1955 (T,Chenee Communist ?
China and the Law of the Sea," 63-1 AJIL C5). Pending confirmation, -
therefore, it may be possible to guess that, ? as related in its Para. 13, the.
original announcement of1950 by the local authorities was superseded by a
general measure of the central government in 1954 (cf. footnore 69 infra.).
63. Oda: ibid. (1956) 129 (footnote 44.supra).
64. The first agreement was twice extended and was due to exnire on June 12,
195n, but Japan had sought a third extension on larch 7, April 17, May 2
and 31, 1950, only to be refused by China on June 11, 1958 (Nitchu Yankei
Shiryo 340- footnote 60 supra), .0ne of the apparent reasons of China's.
refusal is attributed to the so-called :Nagasaki flag incident: of May 2, 1958,
?wheniiJapanese- young ran destroyed the Chinese flag flying at the trade
exhibition center in MagasIti, Japan, thereby arousing a strong feeling in
China (R. Kurai:.'Present Status of Japan-Communist China Relations," ?
1(1061) Japanese Annals of International Relations, To%yo, 917157). ,
65. Zitchu Hausho 130 (footnote 50- supra).
GG. Nitchu Hakusho 125 (footnote 59 nra)., ? It is also noteworthy that, upon
receipt of China's refusal of extension on June 11, 1958, tha Japan-China
? Fishery Assn. of Japan replied that Japanese fishermen would .be advised to
continue to respect the nrovisions of the ? expired agreement (ibid. 340).
67. Nitchu Kankei Shiryo 341 and 430 (footnote 60 supra).
68. For the Chinese text, see 12(1963) TYC 254-72 (footnote 60 supra); for the
.English translation, see 724 Current 5ackaround Dec. 6, 1963, 1-2 and 4-15
for the German translation with a brief remark and a cartographic illustration,
see vdVRC (XII-4-1068 Selriften des instituts fur AsienkunOe in Hamburg)
169-70 -(footnote. GO cupra); and for the Japanese tent, see 'iitchu Yankei-.-
Shiryo 345-55 (footnote GO supra).
-30-
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""'aiitifeer 1Z.a..:1111WiZttarelliZcZe.:N=ZS:_tiatt=a;WaV. ?
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?? ?
..
Ou July ?26,1957, the State Council of. China re public h surrlencni to the
, Yellow Sea-and the East China Sea lotor Trawl .Prohildtion Order (Peemlc's .
Aug. :10, 1057). It vas a southward etension of the tlao.Tse Tung Line.
. to the 27th from.the.20th n..latitud.2.,and at the sane time meant opening . part of of the !tilitary Operations. 1'one- formrly closed to Jamanese travtlers.
.- Though it was a_supplement to a previoUs:announcement of the centralggve tnment,
it is yet to be traceti. that it actually supplementeA. Fronthe ?fact that
the-tvo new basepoints given in the sunmlement coincide ?Jith none in. the?.
. provisional reasure.of,1050 by the local authorities, however, it is clear .
that, there was another.announcenent by thepentral_governmentbetween. 1050.
anti 1957 (cf. footnote. 62.suPra).For'?the.Chinese notice to japan on thin.'?,
- rovision.0f.1957,..see?litchu Nan%ci,Shirvo 330-9 (foctnote GO. supra) ? . ,
70. For the Chinese text, see ,Pep)le's ?Paily Dec. 13.'.1965: for the. English ..
' ? translation, see 3613.Survcv of ainland China.-Prpss (SCIT) 27-42 (Jan:A.0,-
19GO; for the German translation with a brief remark,. see Vdv7C (3II-4-1060:.
?-Schriften?des Instituts fur AsienhunOe in tiamburc).178-33 (footnote Gp supra):
axle, for the Japanese text, see nitchu tiankei Shityo, 355,-60 (footnote 60 .
71... FeF the repeated etensions and revisions-of this.third'acreement,.see? 'Fitchu _.
Tankei thiEza 369-74 (footnote 60-suPra)::32(0-9)-Commercia1 Fisheries ROVieW
Aug.. Sept. 1970,?62; iohon Eeixai Shinbun (Japanese economic daily)%.
.June 22, 1972: and-Yomiuri ninbiln (Japanese daily) June 30, 1972.-'
72. For the Chinese text, see Peonle's.Daiiv.Jan. 1,' 17l; And for the.Fngli? Sh-?
'translation, see 4015 SCIP Jan.. 4-04 1971, 234-39; and for the Japanese text
see NitchUIZankei Shirvo 375-73.(footnote.G0 supra;,.. ?
.72.. See Chan 1t2) China and foOthOte.12.:supra. .. :. I. . ? . .
73... Seeilainichi Shinbun..:(Japanese daily) June 24'1972; andMihon Xeizai'Shinbun
* . (JapiTel.:FZEZEBTaFTeily).Jund 22,;1972:...
75. Zohnston:-ibia. ;202._
- 76. For the Meaning of seni-officialagreementS,-see? D.11:.Johnston .r;i1 !.:..
Chiu:* ?Agreements.of the Peonle's?Republic of China 1953-1967: A.Calendast,
Ea/ward University Press,?1966,:,viii-ix:r::-1,, -......._. . . , ?
77. This 13 also an unusual example-litherebY Japanese fisherman.are:reClUireds -?
;,??
obtain a permit 'from the Indonesian Embassy in JaPan'arld to pay aU.",admission
-fee' for entrance Into the ?Banda ?Seafishing:gtoutd... For details, se Oa -.
(1071), 361-2 (footnOte 30. supra)..:-- - ? ' ; .,'-: .:-- . . . . . .
78.* China*and?Japan shared the'sampopinion on this point. 'See Nitchu HakUsho 1107-
-32 (footnote, 59 supra); or the six-pointScomment by Y. yanc,.Chairman, the '
.Fishery Assn. of China.: 'aitmin Chlmetu .(People's China, Japanese monthly .
published in Peking) Aug? 1057, 10-11. .
79.* 36 International ?Enutdary Study (footnote 51 suPra). .
80. In this regard, tvo points are worth noting in legal context. :Firsti the .
- ? joint communique issued attheoecasion.ofsigninc-the third agreement on Dec..
17,.19G5 says: 'At present, the, increasing expansion of the dogressivervar ?
launched by t%.S.*imperialimn in Vietnam. has seriously menaced laaceiri Asia.
and securitypn the YelloW. and. East Seas. noreover, the signing -of the *:
'Japan-Korea ,treaty" has further aggravated. the. situation" (Para..3, 3613 satp
. Dec: 22, 1965, 26), Second, the Chou-Tanaka joint communique signed in. %
Peking on Sept. 29, 1972 says:: :,".The termination of the state of war... .. . . : . ...
.between China and.Jopan ? ? will.open-a new pane in the. annals ofrelationg
-between the two countries" (Preamble Para. 3, The New York Tines 'Sept. 30, ;
1972; emphasis'adaed). .
81. See footnote 40 supra. _
.. .... .,. . ?
?
. 02. See Chap. IV Infra:. ? ? : .
.63. Paragraph 9 of the Chou-Tanaka joint Communique of Sept. 29, 1972 (the...
? - rev York Tines, Sept. 30,1.072).says in.part-that China and Japan" agree to :
hold negotiations aimed%atthe conclusion of agreements on trade,' navigationaietiOni fist,?..eic..... ? .... taking.intaconsideration the, existinc non-: .
ovetnmcntal aoreements" emphasis added);_initiaI.contacts'at.governmental-.
level for both sides to prepare themselves toward.formal.negOtiations were
:, reported:ln late Nov.' 1972 ..(Mainichi.Daily NoWs,.English'ed., VoAi. 25, 1972),
. 1.31-
??. - .
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? 84. 2038 SCNP Sept. 2, 1959, 35; and. People's Daily Sept: 14-1959, .Theitext?of.-
,
'- this agreement is not -found in,8 .(1959) T':C. 19594 nor elsewhere, still less '
information on the follOW-up activities. of .the parties. For -a brief descript-
ionof this. agreement,.see.K..Grzyboski:' The :socialist Commonwealth of ? ?
Nations: Organisations and Institutions, YaleNniversity?Press, 1964 :
165-66; and J.J. 124-26 (footnote 17 supra). ?
-.85.-For the:Chinese text, see -5(1956) TYC.1G9772.... ?
86. 11(1962) TYC 131 and 1849 SC:MP-39.
??
87. 19(29) Current Dice:It-of-Soviet Prss. Aug. 9, 1907,? 9-10.. .
? 88. The Aneuel'meetings were held as following: 1st (1956) in.Peking, 2nd
: (1957) in Noscow, 3rd (1958) in Pyongyang, 4th %(1959) in ?, 5th (1960) in .
Peking, 6th ?(1961) Ulan:Eator4.7th 1962 in oscow, 8th. (1963) in ?, -9th (1964)
in Hanoi, and .10th (1965). was decided, at the 1964 Eanoi 'session, to have.:
been held in Peking but no report available. For the details, see SCMP
1312 (22-23), 1740.(36),,17.47(46).,? 1837(57), 1845(51), 1899(39), 2385.
(38-41), 2389 (35-37),.2585(25-26) 2229(28),. and 3343(171. .
. 89. 1740 SCMP Mar. 27, 1958, 26;.and 1845 scnp Sept. 3, 1958, 51.
.90.. For the proceedings of the 5th (1960) sessien held in Peking, see TaepvongYang
Sol_22.;n-au Miwonhoi.Jeccha Jonwonhoi Lonmun Jin (proceedings, 5th
.. plenary 'session, .West Pacific Fisheries Research Commission), 333 pages in.
Korean, Pyongyank, North-Korea, Susan Chulpansa, 1964, For the-proceedinge-:.
of the 6th (1961) session held. in:Ulan Bator, See Taipingyang Shipu ?
Yuveh Yenchiu Meiwenhui Diliotzu ChuentihUii Lormenchi (proceedings, 6th
-plenary session, West-Pacific. Fisheries Research Commission), 286 pages in
Chinese, Peking, Kohsueh Chunpanshe,:.1965, Neither volume identifiegi
the time and place of the meeting.H.Turthermore, it is interesting to note ?
that the Norh Korean version was, clasSified" for internal use," Therefore,
it is not quite accurate to say that "no report on its work has ever been
-published" (Cheng: 63-1 AJIL footnote 20 at 50): -
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?;-
Demarcatl on around Che. lu Island :apro. I. .??
a
%
1 0 Proposal by Japan
t 7.
\
% /
1 %/
?
,Proposal by Xorec /
I 1 . -
14?........-,
I % p Pro v i s i o n a 1 s;4774; r e m %- /
1 ? of 1965
/
% . .
t?
V ...q
- % iis:4C-2$1?4...
/ -
Cheju Islamd q
' kl (Korea) ?
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Legend-Map II
International Regulations of Fisheries
in
The Yellow Sea and the East China Sea
(China-Japan and Japan-Korea)
1950 East China Motor Trawl Prohibition Line
(as declared by China)
. 1952 Peace Line (Rhee Line)
?11111111111
Straight Base-Lines off China Coast
(interpretation by U.S. State Dept. of 1958
Declaration by China)
.China-Japan Fishery agreements (non-governmental)1
April is, 1955-June 12, 1958
November 9, 1963-June 22, 1965.
June 22, 1965-
December 31, 1970-Seine Fishing
Fishing Zones 1-7-
+ 1955 intersections of straight line
.11:14 1963-65
??:?t0; 1965- extensions of zones 1 and :2
?
. East China notor Trawl Prohibition Line
?-(in effect June 12, 1953-November 9, 1963
but not as part of fishery agreements)
1955-58 intersections of straight line segments
(declared by China in 1954, a revisions of the
1950 line) line extendedin 1957, 1958
1963-65
- 1965?same line as 196345
Military Zones
. (in effect June .12, 1958-November 9, 1973 but
not as part of fishery agreements)
1955- Warning and Navigation Zones (declared by China in 1960)
:(revised November 9, 1963 as declared by China in 1958)
1955 Operations ZOrie south of 290 North Latitude
(declared by China in 1950) revised
revised to 27? North Latitude July 26,1957
Seine Fishing Regulation Zones 1-111
1970 westerly boundaries same as motor trawl line of 1963-65
Japan..- Korea fishery agreement: June 22,1965
19,11"" Straight Base-Lines off Korea
12 mile Exclusive Fishery Zone of Korea
Joint Regulation Zone
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. 40414,41
Declassified and Approved For Release 2012/09/12 : CIA-RDP08001297R000200130008-0
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Declassified and Approved For Release 2012/09/12 : CIA-RDP08001297R000200130008-0