ASEAN and the Law of the Sea 9789814345590

Table of contents :
FOREWORD
ACKNOWLEDGEMENTS
CONTENTS
TABLES
INTRODUCTION
PART I The Evolution of the Geo-Juridical Nature of Ocean Space Appropriation by Coastal States and ASEAN States
PART II Problems Relating to Jurisdiction and Rights over Living and Non-Living Resources of ASEAN Countries
PART III Conclusion
BIBLIOGRAPHY

Citation preview

ASEAN and the Law of the Sea

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MARITIME BOUNDARY OF ASEAN STATES

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Contmental Shelf Boundary Baseline 12 Nautical Miles tom Baselme

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SOURCES: Information on this map is based on: 1. International Boundary Study, Serres A, Limits in the Seas. INDONESIA: Bureau of Intelligence and Research, No 35 July 20. 1971 2. International Boundary Study, Senes A. Lim1ts 1n the Seas. THE PHILIPPINES· Bureau of Intelligence and Research. No. 33 March 22, 1973. 3. International Boundary Study, Serres A, Limits in the Seas, INDONESIAMALAYSIA: Bureau of Intelligence and Research. No 50 January 10. 1973. International Boundary Study. Serres A. Limlls m the Seas. BURMA Bureau of Intelligence and Research. No 14 March 14. 1970 5. International Boundary Study, Series A. Limits m the Seas THAILAND Bureau of Intelligence and Research. No. 31 March 24 1971 Petroleum News. Southeast ASia October 1977

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ASEAN NEGOfiATIONS TWO INSIGHTS

Pushpa Thambipillai and

J. Saravanamuttu

ASEAN Economic Research Unit INSTITUTE OF SOUTHEAST ASIAN STUDIES 1985

The Institute of Southeast Asian Studies was established as an autonomous organization in May 1968. It is a regional research centre for scholars and other specialists concerned with modern Southeast Asia. The Institute's research interest is focused on the many-faceted problems of development and modernization, and political and social change in Southeast Asia. The Institute is governed by a twenty-four-me mber Board of Trustees on which are represented the National University of Singapore, appointees from the government, as well as representatives from a broad range of professional and civic organizations and groups. A ten-man Executive Committee oversees day-to-day operations; it is chaired by the Director, the Institute's chief academic and administrative officer.

The responsibility for facts and opinions expressed in this publz"cation rests exclusively with the author and his interpretations do not necessarily reflect the views or the policy of the Institute or its supporters.

Published by the Institute of Southeast Asian Studies, Singapore

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the Institute of Southeast Asian Studies.

© 1982 Institute of Southeast Asian Studies ISBN 9971- 902- 40- 0 Typeset by Koford Prints Pte. Ltd .. Singapore.

PrinJed by S,ngapore Naliunol Primers (Pte) Ltd.

FOREWORD

The Institute of Southeast Asian Studies is an autonomo us regional research centre for scholars and other specialists concerne d with modern Southeas t Asia, particular ly the multiface ted problems of developm ent and moderniz ation, and political and social change. The Institute is supported by annual grants from Singapor e and other governme nts, as well as donations from internatio nal and private organizat ions and individua ls. It has neither students nor teaching functions , being purely a research body. In addition to support staff, the Institute has 20 to 25 academic s and other specialists working at the Institute at any one time. About half of these are Southeas t Asians, including Burmese, Indonesia ns, Malaysian s, Filipinos, Singapor eans, Thais, and Vietname se, and others come from as far afield as Europe, Japan, and North America. Though from different disciplina ry and national backgrou nds, all these scholars share a common concern, that is, an interest in the problems of Southeast Asia. They function as a communi ty of scholars and interact among themselve s and with the public at large through a series of seminars and profession al meet· ings. Their research findings are published through various outlets of the Institute and distribute d all over the world. In other words, the Institute is not the proverbial ivory tower. Its involvem ent in the region's affairs is both direct and contempo rary. It seeks to be not only a research organizat ion devoted to nurturing a scholarly environm ent conduciv e to maximum intellectu al creativity , but also one that is keenly alive to publjc issues and needs. In this light it was quite natural that we should get involved in an effort to understan d the implicatio ns of the emerging Law of the Sea on the ASEAN countries . In this, we have benefited greatly from the study conducte d by Dr. Phiphat Tangsubk ul during his fellowship at the Institute of Southeas t Asian Studies, culminat ing in t.his publicatio n. Dr. Phiphat's close involvem ent }Vith the problems of the Law of the Sea and resource developm ent in Southeas t Asia, both as an observer at the Third United Nations Conferen ce of the Law of the Sea, and otherwise , has enabled him to acquire an intimate knowledg e of the ebb and flow in the negotiatio ns for the formulati on of an internatio nal Law of the Sea. His analysis of the implicatio ns of the importan t issues facing the ASEAN countries and the parts these countries have played in the negotiatio ns, as well as their future roles, provides an understanding of the realities and problems of the region. This understan ding is vitally importan t if the question of maritime jurisdicti on among the ASEAN countries is to be resolved favourabl y. The publicati on of ASEAN and the Law of the Sea is thus timely and welcome and should prove useful and interestin g to many. Finally, as is customar y with the Institute's publicatio ns in wishing the author v

VI

H llarly undnstood that the responsibility lot !act;, and opinions expressrd in this publication rPsts Pxclusivdy with Dr. Phiphat, and his interpretations do not necessarily reflect the views or the policy of the Institutf' or its supporters.

Kernial S. Sandhu Director Institute of Southeast Asian Studies

ACKNOWLEDGEMENTS

The initiative of this research work was first encouraged by Dr. Jingjai Hanchanlash and M. Priya Osthanond, but the opportunity to conduct my research was made possible due to the generous support of the New Zealand Government, who funded my ASEAN Affairs Fellowship, and Professor Kernial S. Sandhu, Director of the Institute of Southeast Asian Studies which was my base for research. A number of people from ASEAN countries have given me valuable advice and views to assist me complete this study. They include: Professor Mochtar Kusumaatmadja, Dr. Hasjim Djalal, Dr. M. Dimyati Hortono, S.H., Mr. Noegroho Wisnoemoerti, Dean and Staff of Fakultat-Hukum, Universitas Airlangga, Indonesia (Indonesia); Mr. S.A.L. Mohammad Hashim, Mr. Mohamed Haji Said (Malaysia); Mr. Arturo M. Tolentino, Mr. Vicente Abad Santos, Mr. Estelito P. Mendoza, Mr. Inocencio A. Ronguillo, Mr. Francisco A. Comsti, Mr. Mario C. Manansala, Dr. Virginia L. Aprieto, Dr. Corazon M. Siddayao (Philippines); Professor S. Jayakumar, Mr. Chao Hick Tin, Mr. Michael P.C. Cheok (Singapore); Dr. M.L. Birabhongse Kasemsri, Commander Swarng Charernphol, RTN, Dr. Prajit Rojanaphruk, Captain Thanom Charoenlaph, RTN, Mr. Charu-Udom Ruangsuvan (Thailand); and Mr. M.A. Warga Dalen (ASCOPE). Dr. Choon Ho- Park kindly gave some general comments, while Professor Douglas M. Johnston advised me concerning legal aspects. The map was prepared and drawn with great skill by Promuk Kaeniam of the Geographer, Environmental and Ecological Research Department, Applied Scientific Research Corporation of Thailand, and the various tables were prepared with the assistance of Dr. Virginia L. Aprieto of the University of the Philipines' College of Fisheries. I have also been kindly helped by Dr. William H. Mathews of the East- West Center; Professor Koh Keng Lian of the National University of Singapore; Dr. Frances Lai of the Political Science Department, National University of Singapore; Mrs. Lim Pui Huen and staff of the Library of the Institute of Southeast Asian Studies; Mrs. Sng Yok Fong and staff of the Law Library of the University of Singapore; Miss Cheong Sui Keng, Miss Lee Nyok Chin, Mrs. Somsri Denskoon, and Dr. Sharon Siddique who have all generously provided their time to read drafts of the manuscript. Finally, I would like to thank my friends and colleagues who have given me their moral support; Mr. and Mrs. K. Lulitanonda, Dr. Banphot Virasai, Dr. Vichitvong na Pombhejara, Dr. Khien Theeravit, Mr. and Mrs. M. Rajaretnam Vll

VIII

ACKNOWLEDCEMEN 1 S

staff members of the Faculty of Political Science, Ramkhamhaeng Univnsity, Dr. Michel Bruneau, and last but not least my wife and my family. Although I am indebted to all these kind people for their various contributions, needless to say the responsibility for the facts and opinions expressed in this study is solely mine. It should also be pointed out that as the bulk of this work was carried out in 1978, every effort has been made to update statistics; however, this has not been possible in all cases due invariably to the lack of published information. December 1981

Phiphat Tangsubkul

CONTENTS Foreword Acknowledgements Tables Introduction

v Vll Xll XU!

PART I THE EVOLUTION OF THE GEO-JURIDICAL NATURE OF OCEAN SPACE APPROPRIATION BY COASTAL STATES AND ASEAN STATES I.

2.

CLAIMS OF ASEAN STATES RELATING TO THE LAW OF THE SEA: AHISTORICALSURVEY

3

Southeast Asian Seas and Their Historical Background The Heterogeneous Character of Legislations and Claims of ASEAN Countries

5

INDIVIDUAL APPROACHES AND CLAIMS OF ASEAN COUNTRIES ON THE EMERGING TRENDS IN THE LAW OF THE SEA

9

Indonesia and the Law of the Sea Malaysia and the Law of the Sea Philippines and the Law of the Sea Singapore and the Law of the Sea Thailand and the Law of the Sea

3

9 10 12 15 20

3. THE SPECIAL PROBLEM OF PASSAGE THROUGH STRAITS USED FOR INTERNATIONAL NAVIGATION

The Special Problem of Passage through Straits Used for International Navigation: the Case of the Straits ofMalacca The Special Problem of Passage through Archipelagic Waters

24

25 35

PART II PROBLEMS RELATING TO JURISDICTION AND RIGHTS OVER LIVING AND NON-LIVING RESOURCES OF ASEAN COUNTRIES

41

1. ROLE OF FISHERIES IN ASEAN COUNTRIES Introduction

43 43

IX

CO!'; IE!'; IS

X

2.

Fisheries in ASEAN as a Region An Overview of ASEAN Fish Resources

47 48

FISHERY DEVELOPMENT IN INDIVIDUAL ASEAN COUNTRIES

51

Indonesia Malaysia Philippines Singapore Thailand 3.

5.

64 65 66 68 68 72 73

75

77

STATUS OF DEVELOPMENT OF PETROLEUM AND GAS IN INDIVIDUAL ASEAN STATES

81

Indonesia Malaysia Philippines Thailand Singapore

84 85 86 87 89

LAW AND PRACTICE RELATING TO JURISDICTION AND RIGHTS OVER NON-LIVING RESOURCES IN OCEAN AREAS ADJACENT TO ASEAN STATES

93

In General Law and Practice in ASEAN Countries Indonesia Malaysia Philippines Thailand 6.

58 60

PROBLEMS OF ASEAN VIS-A- VIS FISHING RESOURCES

The Legal Position of the Living Resources and Coastal States Authorities over Adjacent Ocean Areas - Law and State Practice Prior to UNCLOS III - Law Emerging from UNCLOS III Fisheries Jurisdiction Indonesia's Proposals Malaysia's Proposals Philippine's Proposals Singapore's Proposals Thailand's Proposals 4.

51

53 56

PROBLEMS AND POTENTIAL CONFLICT INVOLVING OFFSHORE EXPLORATION AND EXPLOITATION OFOILANDGAS

PART III CONCLUSION

93 95 95 98 99 100 104

107

CONTENTS

XI

APPRAISAL AND SOME OBSERVAIIONS

10'1

Fish Petroleum and Gas

112 ll3

Appendices A. Indonesia's Declaration of an EEZ on 21 March 1980 B. U.N. Document A/CONF.62/C.2/L.49 C. U.N. Document A/CONF.62/C.2/L.64 D. U.N. Document A/CONF.6I/C.2/L.92 E. Malaysia's Declaration of an EEZ on 25 April1980 F. Presidential Decree (No. 1599) signed by President Ferdinand Marcos on ll]une 1978 G. Singapore's Declaration of an EEZ on 15 September 1980 H. Thailand's Declaration of an EEZ on 23 February 1981 I. Thai- Malaysian Memorandum of Understanding, 21 February 1979 ]. Statement by Indonesia, Malqysia, and Singapore on 16 November 1971 Concerning the Safety of Navigation in the Malacca Straits K. Full Text of the Agreement of 18 May 1971 between Australia and Indonesia Concerning Sea- bed Boundaries L. Agreement of 27 October 1969 between Malaysia and Indonesia on Delimitation of the Continental Shelves in the Malacca Straits M. Agreement of 21 December 1971 between Indonesia, Malaysia, and Thailand on Delimitation of the Continental Shelf of the Northern Part of the Straits of Malacca N. Full Text of the Agreement of 1978 between Thailand and India on the Delimitation of Sea-bed Boundary between the Two Countries in the Andaman Sea

144

Bibliography

146

The Author

149

117 119 122 123 124 126 128 129 130 134 135 138 141

TABLES

Page 8

Table 1

The Geneva Convention (1958)

Table 2

Southeast Asia: Comparative Coastlines, Economic Zone, Continental Shelves

44

Southeast Asian Countries: Population, GNP, and Fish' Catch

45

Geographic, Economic, and Fishery Data of Coastal and Land-Locked Countries of the South China Sea

46

Table 5

Fishing Fleet in Indonesia, 1968-72

52

Table 6

Fishing Landings, Peninsular Malaysia, 1970- 75

54

Table 7

Landings of Marine Fish and Prawns for the Year 1975

54

Philippines: Quantity and Value of Fish Products, 1970-75

57

Fresh Fish Landed, Imports, Exports, and Total Fish Available in Singapore, 1971- 75 (metric tons)

59

Annual Landings of Marine Fishes of Thailand, 1970- 75 (in metric tons)

60

Table ll

ASEAN Oil, Gas, and Petroleum Data, 1974-77

83

Table 12

Total Indonesian Crude Production (million barrels)

84

Input and Output of Oil in Singapore

90

Table 3 Table 4

Table 8

Table 9

Table 10

Table 13

XII

INTRODUCTION

The world has already had a foretaste of various kinds of trouble which will occur more frequently unless international rule concerning the oceans can be agreed upon. Basically, instability has manifested itself in various unilateral claims by coastal states to exclusive sovereignty over vast areas of adjacent ocean space, including seas within Southeast Asia. In an effort to inject some rationality into the development of the Law of the Sea, two conferences were convened under the auspices of the United Nations in Geneva in 1958 and 1960. The four Conventions which emerged codified much existing customary law but failed to resolve two issues of fundamental importance to the majority of coastal states. These relate to the breadth of the territorial seas and fisheries. The absence of agreement on these issues was followed by an increasing incidence of extended claims in the establishment of jurisdiction in adjacent sea areas in several parts of the world, including Southeast Asia (see frontispiece map). During the past decade, there has been increasing concern about regional interests with regard to new developments in the Law of the Sea. As a result, several regions have organized seminars and conferences on the issues of the Law of the Sea. Many have finally achieved their mutual standpoint or even a regional legal binding, for example, the Santo Domingo Declaration of 1972; Yaounde's Conference of 1972; the Organization of African Unity (OAU) Declaration of 1973; the Ministerial Conference of the Socialist Countries' "Declaration of 1972 on Principles of Rational Exploitation of the Living Resources of the Seas and Oceans in the Common Interests of All Peoples of the World"; a common fisheries policy adopted by the European Economic Community (EEC) in 1970; and so forth. However, within the Southeast Asian region, countries have been rather more concerned with their internal problems, which have consequently retarded their regional economic development as well as their contributions to the regional development of the Law of the Sea. Although a regional organization, the Association of Southeast Asian Nations (ASEAN), founded on 8 August 1967 with five member states (Indonesia, Malaysia, the Philippines, Singapore, and Thailand), has so far not made any substantial contributions to the development of community activity in respect of the sea when compared with contributions to developments in other fields. A new regime for the oceans is now being drafted under the auspices of the United Nations in the Third Conference which has held sessions since 1973. XU!

XIV

II\ I ROIJ!ICIION

However, to date ( 1981 ), the substantive negotiations on the Law of the Sea that began at the session held in Caracas in 1974 have not been concluded. Whatever the outcome of the new regime of Sea Law, it is certain that the real needs and interests of each region of the globe, including Southeast Asia, might not always be catered for. It is thus necessary for countries in Southeast Asia to work out and agree upon a regional package deal in order firstly to understand what could create transnational problems; secondly, to solve and/ or prevent the problems from becoming Sea Law issues; and thirdly, to promote an atmosphere of confidence and co-operation within the Southeast Asian region. It is true that the different geographical positions of countries in the region are the main factor for the unique position of each of the ASEAN member states at the Third United Nations Conference on the Law of the Sea (UNCLOS III). Nevertheless, this does not imply that, eventually, countries in the region especially ASEAN members could not adopt a harmonious policy to protect and promote their national interests pertaining to the exploitation of the resources of the sea. Until now, there have been no major disputes or vital conflicts in relation to problems of maritime jurisdiction among ASEAN countries. However, draft proposals and official statements submitted to the Third Conference by ASEAN members reflect their different perspectives on several issues. Moreover, different viewpoints could also easily result from varied interpretations and implementation of the Law of the Sea text when it is drawn up in the near future. Nevertheless, whether or not the notion of regionalism vis-a-vis appropriation of the marine environment is accepted by the ASEAN countries, the issue will certainly lead to greater consciousness of maritime interdependence amongst the member states. An awareness of the controversial issues which could jeopardize the emerging trend of co-operation within ASEAN is therefore essential: the time has come to construct a basic framework for the implementation of resolutions. The framework could include various aspects of maritime issues, such as (1) prevention of marine pollution in the region; (2) how to prevent Law of the Sea problems from becoming transnational con· flicts; (3) agreement within ASEAN on how to interpret and implement the provisions of the ICNT 1 ; ( 4) the safety and security of the ASEAN states vis-a-vis potential threats by extraregional powers; (5) co-operation concerning, or joint exploitation of, natural resources among littoral states in the region; (6) how to prevent extraregional powers from trying to impose or continuing to impose their will over Southeast Asian countries or ASEAN members. It goes without saying that, in drawing up such a framework, there should be no attempt to dictate solutions that are contrary to the national aspirations, sovereign rights, and sovereignty of the countries in the region. Informal Composite Negotiating Text, (U .N .Doc.A/CONF.62/L. 78) often referred to as the Draft Convention on the Law of the Sea.

INTRODUCTION

XV

Up to 1945, the Law of the Sea dealt only with two dimensions, namely, surface longitude and latitude. After World War II, however, advancements in technology enabled the hitherto unreachable depths of the sea floor to be explored and exploited. This in turn led to the discovery of new wealth in the form of living and non-living resources on and within the sea· bed. The availability of these resources created new problems in the existing Law of the Sea by adding yet another dimension to its scope, that of depth. The present Law of the Sea Conference, the first session of which was convened in New York in December 1973, is the third conference of its kind convened by the United Nations and commonly referred to as UNCLOS III. It is UNCLOS III that is trying to deal with the problems of the three dimensions. The types of jurisdiction claimed by states attending UNCLOS Ill can be broadly divided into two categories; (1) Complete jurisdiction. This is where the coastal state has control over the resources of the sea and sea-bed as well as navigation and overflight with regard to a particular stretch of water. This stretch of water is usually known as the territo· rial sea and lies immediately adjacent to the coastal state. (2) Partial jurisdzdz'on. Here, only the resources of the sea come under the sovereignty of the coastal state. This type of jurisdiction can be further divided into two subgroups: (a) Resources of the ocean both within the water and on and within the sea-bed; (b) Resources within and on the sea-bed only. Type (a) is presently being claimed at UNCLOS Ill and is called the Exclusive Economic Zone. This zone will be 200 nautical miles in width, measured from the same baselines from which the territorial sea is measured. Type (b) is also being claimed at UNCLOS Ill by countries having continental shelves exceeding the continental margin. Part I of this book will deal with Category ( 1) while Part II will deal with Category (2) under the heading of living and non-living resources. Obviously this study concentrates only on the position of ASEAN member states. The research work for this book was conducted not without some difficulties. Firstly, there is a lack of source documents; the ASEAN states do not appear to have any collections of legislations in relation to maritime jurisdiction. Secondly, there is the problem of language; besides laws in Thai, the author's mother tongue, there are several laws published in Malay, Indonesian, and even in Dutch (some Dutch legislation is still enforced in Indonesia) that presented difficulties with regard to interpretation. Thirdly, owing to the time limitation for research, it was impossible to provide a complete analysis that would cover every aspect of the Law of the Sea. However, this book is an attempt to provide at least a synthesis that covers the important issues in the Law of the Sea that ASEAN countries are facing. Although, on completion of the field work for this research I became more optimistic regarding the question of co-operation within ASEAN, I would say that the ASEAN states need to put in much more effort to promote an atmosphere of confidence and to support scientific research work in matters pertaining to the Law of the Sea.

PART I

The Evolution of the Geo-Juridical Nature of Ocean Space Appropriation by Coastal States and ASEAN States

1 CLAIMS OF ASEAN STATES RELATING TO THE LAW OF THE SEA: A HISTORICAL SURVEY The traditional uses of the sea before World War II made that era of ocean politics relatively simple and straightforward. The relations of ocean states developed around the use of the sea for trade, warfare (including piracy), and limited fishing. However, since 1945 the new era of ocean politics has become rather complex due to the introduction of advanced technology in the exploitation of the resources of the sea and the sea· bed to an extent that was not possible before World War II. Meanwhile, with the extraction ofliving and non·living resources of the sea and the ocean floors on a growing and economically important scale, states have become conscious that the old rules are no longer adequate, and that the time has arrived for the creation of a new Law of the Sea. But before the world community could achieve the creation of new international rules, the wave of unilateral national claims over the high seas had already begun, first by the American states followed by coastal states all round the world. The countries in Southeast Asia were no exception and they too agree with the idea of the re-establishment of a new juridical regime for ocean space. In other words, as for other developing countries, the Southeast Asian coastal states are in favour of national appropriation of ocean space. However, the nature of jurisdiction claimed by Southeast Asian states since 1955 has varied from one to another according to its geographical and eco-political situation. This study thus aims to ascertain the pretension of states in this region with regard to national appropriation of maritime space. Southeast Asian Seas and Their Historical Background Based on investigations made by historians, geographers, anthropologists, lawyers, and political scientists, such as John Crawford, Charles A. Fisher, Alfred R. Wallace, and Bernard H.M. Vlekke, it is evident that the use of the seas within the Southeast Asian region dated from time immemorial. Indeed, a legal system was in existence before the arrival of the Europeans. In his Descrzptive Dictionary of the Indian Islands and Adjacent Countries, John Crawford described the Southeast Asian region by using the term "Asiatic Archipelago" which was formed by the two main archipelagos, namely, the Malay and Philippines Archipelagos together with the adjacent small islands and islets, and which also included the whole peninsula

r

n

:

:

96,461 97,915 98,923 99,600 113,195 106,461

: :

252,727 323,016 332,379 434,255 784,440 809,103

: : :

510,546 542,904 598,733 539,795 684,498 731,725

:

857,717 1,123,811 1,389,061 1,599,487 2,395, 743 2,561,037

988,884 1,023,095 1,122,410 1,204,837 : 1,268,368 1,336,803

1 '725,266 :

2,331,062 2,827,509 3,295,341 5,569,714 5,919,127

0

c

z_, ~

m

[/0

The above values are computed at estimated wholesale prices. 7.5 pesos= US$1 "Fishponds" include all developed brackish-water ponds whe~e juvenile or immature bangos (chanos·chanos) and other kinds of fish and crustaceans .~re introduced, fed, protected, and eventually caught. SoURCE:

1975 -

Fisheries Statistics of the Philippines

v,

"

58

OCEAN RESOURCES

fishery industry. The recently-established Fishing Industry Development Council is intended to provide a mechanism which will integrate the activities of the Bureau of Fisheries and those of the private sector. However, in the Philippines, as in Indonesia. there is a need for greater investment in fishery development, such as more and better harbour facilities and improvement in the distribution and marketing systems. The fishing grounds frequented by Filipino fishermen are concentrated esssen· tially inside the Philippine archipelagic waters and in the South China Sea. According to the Fishery Economics and Information Division of the Bureau of Fisheries and Aquatic Resources of the Philippines, there are 52 fishing grounds frequented by commercial fishing boats. However, there are only eight areas where the quantity of fish landed was about 10,000 metric tons in 1975, namely: 1) Visayan Sea (between Panay, Negros, Cebu, Leyte, and Masbate Island) total fish landed was 181,030 metric tons; 2) North Sulu Sea (between northern Palawan and Panay Island) total fish landed was 111,386 metric tons; total fish 3) Manila Bay (between Cavite, Rizal, and Bataan Provinces) landed was 51,743 metric tons; 4) Asid Gulf (southern coastline of Mas bate Province) - total fish landed was 24,905 metric tons; 5) Lanzon Bay (east of Central Quezon Province) - total fish landed was 16,781 metric tons; 6) Samar Sea (between Samar and Masbate Provinces) - total fish landed was 14,518 metric tons; 7) San Miguel Bay (between eastern Camarines Norte and northern Cama· rines Sur Provinces) - total fish landed was 13,458 metric tons; total 8) Mora Gulf (between Zamboanga de Sur and Cotabato Provinces) fish landed was 12,690 metric tons. Marine fishing is generally concentrated in the largest shallow water areas which are the Visayan Sea (1'2,000 sq. km.) and the Sulu Sea (68,800 sq. km.). The FAO/UNDP Special Fund Deep-Sea Fishing Development Project esti· mates the potential annual yield of Philippine territorial waters at about 1.65 million tons, about 350,000 tons more than the 1974 catch. However, the recent decline in commercial fishery output, despite the expan· sian in fleet number and a trend towards larger and better equipped vessels, casts some doubt on the above estimates of potential Philippine fishery resources. It has been widely recognized that Manila Bay is already overfished. As a consequence, it has been suggested that commercial fishing operations should move into deeper and more distant waters. The number of fishermen in the Philippines,according to the 1975 Fisheries Statistics of the Phitzppines, is 34,582.

Singapore With a population of2.33 million (1978), the Republic of Singapore is the most developed country of the five ASEAN states but it is in the poorest position with regard to fisheries development.

59

FISHERY DEVELOPMENT IN INDIVIDUAL COUNTRIES

The Department of Primary Production indicated that the local production of fish between 1971 and 1976 ranged from 14,000 to 18,000 metric tons, with the highest production in 1974 (18,556 metric tons). The production in Singapore consists almost entirely of marine fish. With a 32 consumption rate of 29.9 kilograms per capita, the local marine fisheries' production is insufficient to meet domestic needs. As a result, Singapore has to 33 import about 50,000 tons, that is about 3.2 times the local production. The major suppliers of fresh fish to Singapore are Malaysia, Thailand, Taiwan, South Korea, Japan, and the Soviet Union. In 1974, Singapore had 2,194 fishermen licensed to use 769 vessels of varied sizes and types. 34 Their fishing activities take place mainly around the eastern entrance of the Malacca Straits; partly in the South China Sea, and partly in the Straits of Malacca and the Straits of Singapore (16,400 tons in 1971). Table 9 Fresh Fish Landed, Imports, Exports and Total Fish Available in Singapore, 1971- 75 (in metric tons) ·

Year 1971 1972 1973 1974 1975 SOURCE:

Local Production

Imports

Exports

Total Availability

14,295 14,797 17,952 18,556 16,927

53,887 53,565 57,797 51,057 50,559

3,542 5,929 6,059 6,170 7,877

64,640 62,433 69,690 63,443 59,609

Adapted from data of the Department of Primary Production, Singapore.

This means that the marine fishery resources of Singapore are contained in a shelf area estimated to cover only 956 sq. km. However, the traditional fishing ground of this country naturally extends to water zones which are currently being claimed by neighbouring states. Although exploratory cruises have identified several distant-water fishing grounds of potential value, Singapore's fishing industry is now facing two main basic constraints to future development: 1) the very stiff competition with other sectors of the country's economy in attracting capital and labour; 2) the limited area of fishing grounds resulting from the recent extension of national jurisdiction of neighbouring countries. The size of the national fishing fleet has declined rapidly in recent years. Vessels with inboard engines totalled 240 in 1974. In spite of this, to capitalize on Singapore's position as one of the world's major ports with a highly developed entrep6t, 32 FAO Doc. SCS/DEV /76/11 op. cit., Table 2, p. 74. 33 Menasveta, op. cit., p. 16. 34 FAO Doc. SCS/DEV/76/ll App. I, op. cit., p. 71.

60

OCEAN RESOURCES

a commercial fishing centre was opened at Jurong in 1969. This Jurong Port Fishing Complex handles supplies for domestic consumption as well as interna· tiona! trade, and offers cold storage and distribution facilities including vesselservicing facilities. As a result, many fishing boats from Malaysia and Thailand (on their way back home from the Andaman Sea) stop atjurong to supply fishery products for the purpose of transhipment as well as for local consumption.

Thailand As. mentioned earlier, the Thai fishing industry is probably the best developed among the ASEAN member states. Its total catch of marine fishes is over 1.6 million metric tons (1976) or about 2.3 per cent of the world's total catch (70 million metric tons). 35 With the consumption rate per capita at 25 kilograms for a population of 45 million, most of the fish products are for domestic needs, although part of the 36 catch is sold abroad, particularly to Japan. Table 10 Annual Landings of Marine Fishes of Thailand, 1970- 75 (in metric tons)

Year

South China Sea Coast (including Gulf of Siam)

1970 1971 1972 1973 1974 1975

1,098,562 1,232,721 1,318,060 1,246,822 1,107,098 1' 172,420

%

Indian Ocean Coast

%

Total marine fishes landings (whole country)

82.2 83.8 85.1 81.1 81.9 84.1

237,128 237,568 230,097 291,194 244,492 222,188

17.8 16.2 14.9 18.9 18.1 15.9

1,335,690 1,470,289 1,548,157 1,538,016 1,351,590 1,394,608

SouRCE: Adapted from data of Table 9, Fisheries Records of Thailand, 1975, Department of Fisheries, Thailand.

Data from the Fisheries Record of Thailand, 1975 show that the value of the annual total marine catch was US$246.82 million in 1972; US$328.12 million in 1973; US$204.68 million in 1974; and US$255.1 million in 1975. As o£1976, there were 257,254 Thais engaged in fisheries and their catch (marine fish, freshwater fish, and shellfish) was worth US$375 million or 7.5 billion baht, or an average 37 value of US$1, 460 per fisherman. In former years, the marine fishing activities of Thailand were conducted entirely in the shallow and inshore waters along the coasts. However, the marine landings of the country increased tremendously, at least ninefold between 1960 35 "Fishing Development and Management in Southeast Asia: Spotlight on Thailand", ICLARM Newsletter I, No. 2 (October 1978). 36 Japan is Thailand's most important export market, purchasing 67 per cent of all fishery products exported (by value). The United States, Singapore, Malaysia, and Hong Kong are smaller but important markets; ibid., p. ll. 37 Ibid.

FISHERY DEVELOPMENT IN INDIVIDUAL COUNTRIES

61

and 1976 (186,500 metric tons in 1960 to about 1.61 million metric tons in l97fi) with the introduction of modern trawl fishing in 1961 by the "Thai-German Project". The trawl fleet grew rapidly with little or no restriction on the entry of additional vessels or on the volume of total catch. The result of this new type of equipment led to over-capitalization and subsequently to biological overfishing in the Gulf of Siam. Consequently, this made it necessary for Thai fishing boats to go farther afield and into international waters. A decade after the 1960s, Thailand became one of the important distant-water fishing states in the world (ranking seventh). Thai fleets also operate along Thailand's 2,600 km. coastline, in 395,000 km. of shelf area, and 4.5 million hectares of inland waters, stretching from the southern part of the South China Sea in the Sunda Shelf (off the southern part of Vietnam, the Gulf of Siam, the east coast of Peninsular Malaysia, Sarawak, and the Indonesian archipelago), to the Malacca Straits and along the coasts facing the Indian Ocean to the west of Thailand. From small catches in the Gulf of Siam, Thai fishing vessels have also extended their activities to the Mergui archipelago and up to the Gulf of Martaban and more recently to the Arakan coast, the southern part of Bangladesh and the eastern part of India in the Indian Ocean. The total catch along the Indian Ocean coast reached its peak in 197 3 with 291, 194 metric tons, which represents 18.9 per cent of the total fish landing of Thailand in that year (see Table 10). However, despite its successful development, Thailand is not without fishery and resource management problems; the most vital problem that this country is facing now is a legal one. The new concept of the exclusive economic zone that will govern the whole South China Sea as well as the Indian Ocean would mean that the ocean space of the region would be under the national jurisdiction of neighbouring countries. This new development will certainly limit the growth of Thailand's fishery industry. Thai fishery experts estimate that if the provisions of the economic zone under the new Convention are enforced, the total marine catch of Thailand would be reduced by about 660,000 metric tons or 40 per cent. As a result, Thailand is now obliged to look upon the development of inland fisheries as well as the, as yet, unexploited offshore living resources. On 20 May 1977, the Asian Development Bank (ADB) announced its approval of technical assistance to start a suitable project for the development of inland fisheries in Thailand. 38 The project, to be executed by the Department of Fisheries of the Ministry of Agriculture and Co-operatives, is designed to introduce new culture species and appropriate technology to improve and expand existing aquaculture methods and to raise the socio-economic conditions of fish and shrimp farmers. 39 In addition, the Department of Fisheries is now considering an amendment to the Fisheries Act, the penalty clauses of which are presently too mild to act as a deterrent to fishing during the off-season. Penalties to protect crabs, mussels, and other fishes from being caught by unscrupulous fishermen before they are 58 Asia Research Bulletin, Monthly Economic Reports, 31 July 1977, p. 350. 59 It has been tentatively agreed to conduct the project along the northeastern coast, the central coast, and the southwestern coast of the Gulf of Siam.

62

OCEAN RESOURCES

mature, as well as for catching them during the spawning season, will be included. Notice has already been issued prohibiting the use of seine and trawl nets to catch mackerel during the spawning season (February-April) from Prachuap Khiri Khan down to Nakhon Sri Thammarath and also during the period May to October when the leaf mackerel fries are maturing. Since 1977, Thailand has had a joint-venture agreement with Bangladesh; 40 it also expanded its fishing operations in Indian national waters in 1979. Encouraged by these successful fishing agreements with the two countries concerned, Thailand intends to continue in its efforts to negotiate joint ventures with other neighbouring countries.

40 More than 15 Thai fishing firms have reached joint-venture agreements with 40 private fishing companies in Bangladesh; from National Review: Buszness (Bangkok) 18 January 1979.

3

PROBLEMS OF ASEAN VIS-A- VIS FISHING RESOURCES

Having examined the problems faced by individual ASEAN nations with regard to fisheries development and management, we can now view the problems faced in this area by ASEAN as a region. To upgrade the development and management of fisheries in any country, it is necessary to (l) moderate the country's governmental structure relating to fisheries (2) establish an effective fisheries management system (3) increase investments in advanced fishing gear, vessels and harbour facilities (4) provide more training facilities so as to upgrade the professional competence of fishery personnel (5) have proper management of resources and at the same time prevent marine pollution (6) educate fishermen in the use of new techniques specially modified to suit their respective social, cultural and economic conditions. Certain circumstances affecting fishery development and management, however, seem to demand that the industry be viewed from a regional perspective rather than a national one. These circumstances include the fact that there are disparities in the shape and extent of man's ocean boundaries. Because of the necessity of this regional approach, the Law of the Sea assumes a position of great importance. The results of the currently emerging Law of the Sea 1 could on the one hand prove instrumental in motivating regional co-operation. On the other hand, there is the danger of results which could jeopardize the full utilization of living resources, giving rise to international conflict. Ideally, the best way of obtaining collective benefits would be for the states in the region to settle all disputes connected with the exploitation of marine resources through regional agreements under the new Law of the Sea. This solution would provide clear-cut marine boundaries which all states would observe. In the long run, this would prove economical to all concerned, because disputed marine boundaries have often led to violations of a state's sovereign rights which in turn have led to conflict. To protect national interests and restore national pride, a stronger navy has often been necessary. This has always involved large sums of money which could otherwise have been channelled for social and economic The Third UN Conference on the Law of the Sea (UNCLOS III) now in its lOth session (1981).

63

64

OCEAN RESOURCES

purposes. For instance, to patrol a troublesome water area of 2,700 square kilometres at least two missile gunboats are necessary and in normal circumstances, as in peace time, to run such a gunboat for 24 hours would cost US$30,870. On the average this would come to US$10.86 million a year. 2 The effect of this prohibitive cost can be seen in the example of Thailand. Thailand's fishing activities include long-distance fishing in the Gulf of Martaban as well as along the Mergin Archipelago. On 19 April 1977 3 Burma unilaterally claimed a 200-mile economic zone. This claim was not recognized by Thailand and they failed to reach any agreement relating to their maritime boundaries. Consequently, Thai fishing boats straying into the newly claimed Burmese waters have been arrested. On occasion, Thai vessels fishing legally in Bangladesh waters 4 have also been arrested, with full loads of fish, on their way back to Thai territorial waters, and accused of fishing within the Burmese economic zone. As a result, Thailand in 1977 sent a gunboat to patrol its fishing fleet to ensure safe passage to Bangladesh waters. The total marine fish landings of Thailand from the Indian Ocean accounted for the highest value in 1973 - about US$62 million. After deducting the prime cost, the question to be asked is whether the net benefit is worthy, in economic terms, if not in political and military terms. The Legal Position of the Living Resources and Coastal States Authorities over Adjacent Ocean Areas In consequence to emerging trends of the Law of the Sea on the international level, ASEAN countries are facing problems with respect to the issue of fisheries jurisdiction. In the last decade ASEAN member states have shown a tendency towards extended maritime zone policies particularly with respect to the coastal state's rights to exploit natural resources in ocean areas. With regard to living resources' coastal jurisdiction is likely also to be extended to 200 miles. This juris· diction will include enforcement authority over fishing vessels which currently 2 Statement by Dr. Goh Keng Swee, Singapore's Deputy Prime Minister and Defence Minister, on Tuesday, 14 March 1978; Straits Times (Singapore), 15 March 1978, p. 8. 3 Burma claimed the EEZ on 19 April 1977 (Law No. 3 of 1977). 4 Under the bilateral fishery agreement between Thailand and Bangladesh. 5 The biological aspects of the living resources may be considered in two categories: (i) The sedentary, or benthonic species which, at their adult stages, live attached to the sea-bed, or within the subsoil, or move about on its surface, but do not swim in the waters above. (ii) The demersal species that have an intimate association with the sea-bed for food or refuge, although they swim about freely in the water above, such as the flatfishes and various crustaceans. However, some species in both categories have free-floating or free-swimming eggs (larvae and juveniles) that are pelagic, that is, creatures of the open sea that are not dependent on those at the bottom. Conversely, some species that are pelagic as adults, such as the herring, may deposit their eggs in shallow waters on the sea bottom. This means that the species dependent on the sea- bed or in close contact with it, contribute all or part of their lives substantially to the complex environment of a striking heterogeneous nature in comparison to the mineral resources of the sea-bed or subsoil. This also shows what summary Article 2(4) of the Convention on the Continental Shelf is about. See R.J. Dupuy. The Law of the Sea: Current Problems, p. 122.

pROBL EMS VIS

AVIS FISHIN G R~~~OliRCL~

65

of the seas or unde r intern ation ally opera te unde r the princ iple of entire freed om agree d enfor ceme nt schem es. 6 Law and State Practice Prior to UNC LOS III that beyo nd the territ orial sea, Prior to 1958, it was estab lished tradit ional law fishin g activities. Thes e vessels were fishin g vessels of all states were free to cond uct the flag state itself had agree d to s unles state1 subje ct to the contr ol of the flag this perio d, there fore, the notio n of accep t the autho rity of anoth er state. Durin g st place - sover eignty over intern al sover eignt y over water s occup ied only a mode and territ orial water s was uncon tested . e occur red in conn ectio n with On the intern ation al scene, the first majo r chang r the provi sions of the 1958 Gene va living resou rces of the conti nenta l shelf. Unde partie s agree d that the coast al state Conv entio n on the Cont inent al Shelf, state nenta l shelf for the purpo se of conti shoul d exercise sover eign rights over the 8 The term "natu ral resou rces" rces. resou al explo ring it and explo iting its natur living organ isms belon ging to the was defin ed in the Conv entio n and inclu ded of ct with the sea- bed or the subsoil 9 seden tary species whic h were in physi cal conta s. water orial territ the ding excee the conti nenta l shelf even withi n a distan ce stage wher e coast al jurisd iction Since 1960, state pract ice has evolv ed to the zone is in accor d with intern ation al over fisheries in a 12-m ile exclusive fishin g law. 10 certa in claim s for exten ded coast al Howe ver, even befor e the 1958 Conv entio n, Augu st 1952, Chile , Peru, and 18 On . made jurisd iction had alrea dy been ago. This decla ration exten ded Ecua dor signe d a tripar tite decla ration in Santi their coast al sea to a distan ce of 200 the exclusive sover eignt y of these states over il. subso nauti cal miles inclu ding the sea-b ed and ding the area of her sover eignt y exten s claim Icela nd has also made unila teral the scien tific conse rvatio n of the seaw ard. In 1948 a law was passe d conce rning law provi ded that "the Minis try of Cont inent al Shelf Fisheries. Artic le 1 of this citly boun ded conse rvatio n zones expli g Fishe ries shall issue regul ation s estab lishin nd, wher ein all fisheries shall be withi n the limits of the conti nenta l shelf of Icela first regul ation made unde r this law subje ct to Icela ndic rules and contr ol". The ded Icela nd's exclusive fishin g zones was issued in 1952. Thes e regul ation s exten new set of straig ht basel ines from a from three to four miles, and estab lished be meas ured. By the seventies, to was zone whic h the outer limit of the new and large alrea dy fully explo ited. To howe ver, the water s aroun d Icela nd were by Icela ndic Gove rnme nt anno unce d in enabl e it to prote ct its living resou rces, the

of this zone but the majori ty of state practic es use 6 There is no intern ationa l agreem ent on the width a width of !l to 12 miles. of the Ocean, p. 743. 7 McDougal & W. Burke , The Public Order not on the Contin ental Shelf; however, there does 8 USA, Article 2(4) of the 1958 Convention on the or e purpos this for es" resourc "shelf are appea r to be genera l agreem ent eitht:r on what ; see n fishing for bottom fish and for shelf species means for accom modat ing the conflict betwee in the Ocean, p. 11. ement Enforc Law l ationa Intern and al W.T. Burke et al., Nation Contin ental Shelf (1958). 9 Article 2 of the Geneva Conve ntion on the 11. p. cit., op. al., et 10 Burke

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1971 that from 1 Septembe r 1972, Iceland's exclusive fishing zorw would be extended to 50 miles. 11 The Federal Republic of Germany and the United Kingdom, the two nations most affected by the Icelandic claim, immediat ely made their protests. In spite of this, the Icelandic Governm ent proceede d to implemen t its intention s by the Resolutio n of the Althing of 17 February 1972 and Regulations of 14 July 1972 concernin g the Fishery Limits off Iceland. 12 Finally, both the Federal Republic of Germany (on 5June 1972) and the United Kingdom (14 April 1972) referred the dispute to the Internatio nal Court of Justice. The three basic questions for the Court's considera tion were: (1) Was Iceland's claim to a 50-mile exclusive fishing zone contrary to international law? (2) Was Iceland's claim to a 50-mile exclusive fishing zone bpposabl e by the applicant states? (3) Was the question of the conservat ion of fish stocks in the waters around Iceland a matter susceptib le to unilatera l regulatio n by lceland? 13 The Court held that Iceland's claims to a 50-mile exclusive fishing zone was not opposabl e by the applicant s, but declined to say whether it was contrary to internatio nal law. The Court went on to say, however, that Iceland had preferential rights in the waters beyond the 12-mile limit. At the same time, the applicant s had establishe d historic fishery rights in the same waters. These two rights had therefore to be reconcile d, and this had to be done equitably . The parties were therefore under an obligatio n to enter into negotiatio ns to attempt to delimit their respective rights. The Court's reply to the applicant s' third question was essentially in the negative. Througho ut, the Court was at pains to stress that its judgement was based firmly on lex lata, and not in any way on lex ferenda. 14 (The Court's judgemen t was given 10 votes to 4.) It appears therefore , from the Court's judgemen t, that current internatio nal law permits the coastal state prescripti on and enforcem ent of fishery regulatio ns in the exclusive fishing zone which exceeds the width of the territoria l waters. This right, however, is subject to considera tion of other states' historic fishing rights. The question that is then raised is whether an exclusive fishing zone extending more than 12 miles from the baselines is permitted by customar y internatio nal law.

Law Emerging from UNCLOS III The fisheries issue is obviously one of the most importan t subjects at the Third U.N. Conferen ce on the Law of the Sea (UNCLO S III). Various proposals have been tabled with regard to fisheries jurisdicti on. The three major suggestio ns were: (1) A broad territoria l sea extending seaward to 200 nautical miles. 11 R.R. Churchill, "The Fisheries Jurisdiction Cases", Internation al and Comparativ e Law Quarterly 24 (January 1975), p. 84. 12 For text, see Lay, Churchill and Nordquist, New Directions in the Law of the Sea, pp. 89- 92. 13 R.R. Churchill, op. cit., p. 86. 14 Ibid.

pROBU:M S VIS

AVIS FISJIINC RESOURC ES

67

s. (2) An econom ic zone of 200 nautica l miles from the baseline limit. sea ial territor 12-mile the within (3) Exclusive fishing the second At the end of the Sixth Session of the Confere nce in July 1977, ting Text" Negotia site Compo al revised docume nt, referred to as an "Inform text was to The ttees. Commi 5 three of en Chairm (ICNT )' was drafted under the end of the the to up held ons discussi l informa and formal the be an accoun t of all not affect would nt confere nce and to provide a basis for negotia tion. This docume rights of the affect it would nor the status of the proposa ls already present ed again was which ICNT The ls. proposa new or ents delegat ions to submit amendm 79, April19 27 and March 19 between Geneva in revised at the Eighth Session held Draft the as d adopte been now has 1980, in York New in and Ninth Session Conven tion. 16 es are conThe specific provisio ns dealing with fisheries enforce ment measur Econom ic ve Exclusi "The of s subtitle the under text tained in Part V of the ). 86-120 s 17 (Article Seas" High "The and 55-75) s (Article Zone" purpose of Articles 56- 57 grant coastal states "sovere ign rights" for the es of its resourc natural the ng managi explori ng and exploiti ng, conserv ing and e from baselin the from miles 200 to extend may which exclusive econom ic zone, ed. measur is sea ial territor the of breadth which the le catch of Accord ing to Article 61, the coastal state is to determ ine the allowab state shall coastal the Also, zone. ic econom the living resourc es in its exclusive in or mainta to d designe es measur ment manage and ation ensure proper conserv the e produc can restore the popula tion of harvest ed species at levels which on. ploitati maxim um sustain able yield and to prevent over-ex not have the Article 62 contain s the provisio n that if a coastal state does ents or agreem through shall it catch, le allowab entire the capacit y to harvest le allowab the of other arrange ments, grant other states access to the surplus catch. shall comply Nationa ls of other states fishing in the exclusive econom ic zone hed in establis ons conditi and terms other the with and es measur with conserv ation the regulat ions of the coastal state. or stocks of Article 63(1) stipulat es that in a case where the same stock or more two of zones ic econom e exclusiv the associa ted species occur within ation conserv the ensure and nate co-ordi to seek shall states coastal states, these l regiona or onal and develop ment of such stocks, either directly or through subregi organiz ations. of the docuWith regard to the highly migrato ry species (listed in the annexe nationa ls whose states other and states coastal the that s ment), Article 64 provide riate approp fish for those species in the region shall co-oper ate directly or through ing promot and ation conserv g interna tional organiz ations with a view to ensurin both region, the out through species such of the objectiv e of optimu m utilizat ion within and beyond the exclusive econom ic zone. 15 U.N. Doc.A/C ONF.62/ WP.10, 15July 1977. 16 U.N. Doc.A/C ONF.62/ L.78. concept. 17 The "Fishery Zone" is now included within the "Economic Zone"

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Article 73 refers to the enforcement of fisheries regulations within the exclusive economic zone. It grants the coastal state the authority, at all times (within the exclusive economic zone) to board, inspect, arrest, and conduct juridical proceedings to ensure compliance with their fisheries laws and regulations. It provides that arrested vessels and their crew shall be promptly released upon the posting of reasonable bond or other security. In the absence of agreement, it prohibits coastal states from including imprisonmen t or other forms of corporal punishment as penalties for violation of their fisheries regulations committed by foreign fishermen. In cases of arrest or detention of foreign vessels, the coastal state shall promptly notify, through appropriate channels, the flag state of the action taken and of any penalties subsequently imposed. According to Article 87 (under Part VII, The High Seas), freedom of fishing and scientific research on the high seas is to be opened to all nations. Articles 116 through 120 (Section 2 of Part VII, The High Seas) provide for the management and conservation of living resources of the high seas. Articles 117 - 118 require all states to adopt or co-operate in adopting for their respective nationals measures necessary to manage and conserve high seas living resources. Altogether, the Draft Convention provides, with respect to the fisheries issue, at least 25 major articles. To discover the spirit and purpose of the Draft Convention, an examination of U.N. Resolutions, state proposals, and draft articles (submitted to the Sea-bed Committees at UNCLOS III) is necessary. A study of the relevant articles of the Draft Convention would also reveal the new positions of the countries involved (assuming that all ASEAN states will be parties to the new Convention). Should, however, UNCLOS III prove to be a failure, sections of the ICNT provisions could still form part of Customary International Law; for instance, the concept of "transit passage" through straits and archipelagic waters, and the exclusive economic zone concept.

Fisheries Jurisdiction Indonesia s Proposals The fisheries issue has long been a topic of great concern to Indonesia. Mr. Kasuma, the Indonesian representativ e to UNCLOS I, made clear the Indonesian position on 12 March 1958. He said: Fish is a very important factor in the diet of the Indonesian people, and will become even more important as the Government's plans for raising the standard of living mature. Accordingly, my delegation supports the view that the coastal state has a special vital interest in the living resources of the maritime domain. 18

With regard to the conservation of the living resources of the sea, Mr. Kasuma suggested that "each coastal state should make regulations governing its own waters, the possibility being left open to neighbouring coastal states to enter into conservation agreements relating to areas of common interest. Such measures 18 Third Committee (Sixth Meeting) of UNCLOS I, on 12 March 1958.

PROBLEMS VIS -A-VIS FISHIN G R ESOURCES

69

should be based on technical and practical , as well as on purely scientific , data" . 19 Following this statement, the Indonesian delegation presented , with another ten states, 10 three proposals in relation to conservation measures of living resources in the high seas adjacent to the territorial seas: U.N. Document A/ CONF.13/ C .3/ L.65; U.N. Document A/ CONF.13/ C.3/ L.66 ; U.N . Document A/ CONF.13/ C.3/ L.66/ Rev .1. These proposals tended to recognize the right of any state to fish in the area adjacent to the territorial sea of a coastal state and initiate negotiations with coastal states to work out joint conservation measures, but pending agree · ment the measures adopted by the coastal state would remain in force . The Indonesians at that time also favoured a regional approach . Mr. Kasuma stated that "inasmuch as over-fishing or over-exploitation were potential sources of disputes, the Committee should, for the purpose of avoiding such disputes , recommend the conclusion of agreements between neighbouring coastal states concerning their respective interests in the living resources of particular maritime areas ... " He hoped that the principles to be adopted by the Conference would be such as to encourage the conclusion of regional agreements. 11 Besides the Presidential Act of 18 February 1960 (which replaced the Ministerial Decree of 13 December 1957) by which Indonesia made unilateral claims for Internal Waters, Territorial Waters, 11 and established straight baselines closing the whole archipelago, the Indonesian delegation has submitted to the Conference at least two key joint-proposals relating directly to the archipelagic concept and economic zone criteria: Joint-Proposal U.N. Document A/ CONF.621 L.4; 23 U.N . Document A/ CONF.62/ C.2/ L.49. 14 • The content provides for the exercise of the coastal state's sovereign rights in and throughout an area beyond and adjacent to its territorial sea , known as the exclusive economic zone for the purpose of exploring and exploiting the natural resources , whether renewable or non-renewable . The outer limit of the economic zone is not to exceed 200 nautical miles from the applicable baseline for measuring the territorial sea. The word "applicable baseline" was put in with an intention not to follow the normal baseline; that generally is the low-water line along the coast of the coastal state. Under such circumstances, the economic zone of Indonesia would be measured not from the low-water line of the coast of every island but from the straight baselines 25 closing the whole archipelago up to a distance of 200 nautical miles. 19 Ibid. 20 Burma, Chile, Coasta Rica , Ecuador , Republic of Korea, Mexico, Nicaragua, Philippines, Republic of Vietnam, and Yugoslavia. 21 Third Committee (Sixth Meeting) of UNCLOS I, on 12 March 1958. 22 As of January 1979, the Indonesian fiShery zone remains at the same breadth as the territorial sea (12 miles). 2!1 Document A/ CONF.62/ L.4 submitted by Canada, Chile, Iceland, India , Indonesia, Mauritius, Mexico, New Zealand, and Norway. 24 Document A/ CONF.62/ C.2/ L.49 submitted to the Second Committee by Fiji, Indonesia , Mauritius, and the Philippines. 25 For the straight baselines, see Titik-titik Posisi DaTi Garis-garis Dasar, Perairan Republik Ind onesia, Annex of the Presidential Act No. 22 of 20 January 1960.

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To support this new method, Indonesia has also made joint-proposals with three archipelagic states: Fiji, Mauritius, and the Philippines (A/CONF.62/ C.2/L.49) which provides that "an archipelagic state may employ the method of straight baselines joining the outermost points of the outermost islands and drying reefs of the archipelago in drawing baselines from which the extent of the territorial sea, economic zone and other special jurisdictions are to be measured" [Article 2( 1)]. The Indonesian claim for a 200-mile economic zone applying the archipelago baseline method will add an area of 1,577,300 square nautical miles 26 to its territory outside its archipelagic waters that enclose approximately 666,000 square nautical miles. 27 The Indonesian hope for a larger nationally controlled sea area appears to be materializing, as the last Law of the Sea basic document, the Draft Convention (Doc.A/CONF.62/ L. 78) accepted and included the archipelagic concept and the exclusive economic zone in its Part IV and V respectively. The Indonesian position under the new Law of the Sea is certainly dominant, especially vis-a-vis the fisheries issue. However, the Indonesian delegation was well a, ware of the fact that within the area of ocean space in Southeast Asia, the more maritime area their country gained the more its neighbouring countries lost. Indonesia is now also facing the question of the traditional rights or historic rights of fisheries of other Southeast Asian nations (or even the long-distance fishing countries such as Japan, Korea, and Taiwan), rights that it recognized at the first Sea Law Conference in 1958. The Indonesian delegate, Dr. Djalal declared that his delegation was aware of the possible problems that might arise from the traditional fishing activities of immediately adjacent neighbouring countries in Indonesian waters 28 and ipso facto, discussions on that topic have already begun, between Indonesia and Malaysia, and Indonesia and Thailand. One of the problems encountered by the new zoning method is the fact that the Indonesian economic zone will separate the East Malaysian zone from the West Malaysian zone. The Indonesians have taken this into account as evidenced by the second of the two aforementioned proposals which state that "if the drawing of straight baselines encloses a part of the sea which has been traditionally used by an immediately adjacent neighbouring state for direct communication including the laying of submarine cables and pipelines ... the continued right of such communication shall be recognized and guaranteed by the archipelagic state". 29 Besides referring to the rights of navigation/ communication of the immediately adjacent neighbouring states, however, the document does not mention the traditional fishing rights of these countries. With regard to the question of "traditional fishing rights", in his paper on 26 Neptune No. 9, Issues for 1976 Law of the Sea Conference (New York), quoting figures from U.S. Geological Survey Professional Paper, No. 885. 27 Barry Hart Dubner, The Law of Territorial Waters Of Mtd-Ocean Archipelagos and Archipelagic States, p. 64. 28 Speeches of Dr. Djalal at the Second Session (36th Meeting) Second Committee ofUNCLOS III, on 12 August, 1974. 29 U.N. Document A/CONF.62/C.2/L.67.

PROBLEMS VIS-A-VIS FISHING RESOURCES

71

30 "Implem entation of Agreeme nts with Foreigner s", Dr. Djalal stated that:

The concept of traditional fishing rights, based on actual fishing, must therefore be clearly defined. As far as Indonesia is concerned , the word "traditiona l" should refer and respond to several criteria. Firstly, "traditiona l" should be judged in terms of time-fram e, that is, the actual existence of sufficiently long fishing activities must be established . Secondly, "traditiona l" should also indicate the area frequently visited by the fishermen, that is, the fishing ground visited should be relatively constant. Thirdly, "traditiona l" should also refer to the fishermen themselves, in the sense that the right shall be granted only to the same fishermen who have visited the area traditional ly. Fourthly, "traditiona l" should also refer to equipmen t and vessels used as well as the amount of catch, in the sense that to qualify under the meaning of "traditiona l fishing right", the vessels used should be relatively traditional ones. It therefore excludes the possibility of granting traditional fishing rights to modern vessels with modern equipmen t, primarily because such modern vessels and equipmen t would put Indonesian local fishermen in an extremely disadvanta ged position.

However, Dr. Djalal further stated that: It is therefore clear that in the future, the enjoyment of traditional fishing

rights by adjacent neighbour ing states in Indonesian archipelag ic waters is the recognized although its implemen tation and modalities would depend on 31 bilateral agreement to be concluded between the countries concerned .

The adjacent neighbou ring states mentione d above could probably mean Malaysia, Singapor e, and Thailand , or even the Philippin es. However, the cooperation would be on the basis of the Indonesia n Foreign Investme nt Law of 32 1967 (Indonesi an Law No. 1, 1967). that the concept of traditiona l fishing rights out In addition, Djalal also pointed 33 the concept of traditiona l right to fish. from hed distinguis should be clearly Accordin gly, he explained that: While some may argue that under customary internation al law, all states may have traditional rights to fish in the high seas or in the waters which once were high seas, the concept of traditional fishing rights should be based on real and existing practices. 34

Indonesia , on the other hand, also has problems concernin g its traditiona l fishing rights in waters off the coast of Australia . Such rights have been regulated 35 through bilateral arrangem ents. Finally, Indonesia declared its exclusive economic zone on 21 March 1980. The delimitat ion of such a zone will be measured from the Indonesia n archipela gic straight baselines. 36 30 31 32 33 34 35 36

Hasjim Djalal, "Implemen tation of Agreements with Foreigners", pp. 39- 48. Ibid., p. 46. Ibid., pp. 45- 46. Ibid., p. 45. Ibid., p. 45. Ibid., pp. 46-47. See the full text in Appendix A.

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Malaysia's Proposals Although the Malaysian geographical position is not that of an archipelago like her neighbours, the Philippines and Indonesia, almost 80 per cent of her territory is bounded by the seas. Therefore, extension of any type of fisheries jurisdiction is more or less to Malaysia's favour. Why then did Mr. Abdul Kaoir bin Yusof, the Malaysian representative at the Third Conference state that his delegation "agreed that a coastal state should be entitled to establish a broad economic zone with exclusive rights to explore and exploit the living and non·living resources therein and could support a breadth of 200 nautical miles". 37 The expansion of the economic zone of Malaysia will essentially be in the South China Sea, especially the offshore areas of Sarawak and Sabah. It is estimated that the total economic zone would be about 138,700 square nautical miles. 38 The waters around the Malaysian Peninsular would, however, become zone· locked by the straight baselines of the Indonesian archipelago. 39 The main obstacle to Malaysia's extending the economic zone to a maximum area (along the east coast of the Malaysian: Peninsular) is the Indonesian claim based on the concept of an archipelagic state. This new practical archipelagic concept that allows Indonesia to draw straight baselines around its archipelago will close almost the whole area of waters adjacent to the southeastern part of the Malaysian Peninsular, between latitude 6° North to 2° South and longitude 105° to 110° East. Despite Indonesia's recognition of the traditional rights of the immediately adjacent neighbouring state for direct communication between one part of its national territory and another part of such territory, there is still room for ambiguous interpretation in legal terms. Does the word "communication " mean the navigation of all types of ships including the overflight of war aircraft? Is the term "traditional rights" de jure applicable to Malaysia who has annexed Sarawak and Sabah, her eastern territories, since 1964. In order to prevent the violation of such rights, Malaysia has submitted a docu· ment: (Amendments to Document A/CONF.62/C. 2/L.49) A/CONF.62/C .2/ L.64 40 to the Second Committee of UNCLOS III in 1974. Through this document, Malaysia proposed to change the wording contained in paragraph 5, Article 2 of Document A/CONF.62/C. 2/L.49 41 to "direct access and all forms of communications ". It is understandable for Malaysia who is an immediately adjacent neighbour of two archipelagic states to propose more concrete terms for the drafting of article A/CONF.62/C. 2/L.49. Nonetheless, on the question of fishing rights, besides its support for the economic zone concept, Malaysia did not suggest any direct proposals. However, the word "access" found in document A/CONF.62/C .2/ L. 64 42 might be interpreted as "access to natural resources". This interpretation is debatable since the content of paragraph 5 of Article 2 (Document 37 38 39 40 41 42

General Statement - Second Session of UNCLOS III Plenary Meetings on 10 July 1974. Neptune No. 9, op. cit. See frontispiece map. This docwnent was submitted to the Second Committee of UNCLOS III on 16 August 1974. See the full text in Appendix B. See the full text in Appendix C.

PROBLEMS VIS

I

A~

VIS F!SlllNG

RESOl!RC~~S

73

A/CONF.62 /C.2/L.49) is wholly directed to the communicat ion issue. On the other hand, the word "access" is not a technical-jur idical term that automaticall y means "access to the natural resources". A more direct and clear proposal regarding fishing rights only emerged in 1976, when Malaysia submitted another document: (amendment to Document 43 to the Second A/CONF.62 /C.3/L.49) Document A/CONF.62 /C.2/L.92 proposal Malaysian pew The Committee at its Fourth Session of the Conference. traditionally has (Malaysia) state that which rights referred directly to "all existing exercised and all rights stipulated under agreements already concluded and other legitimate interests shall ensure and remain unaffected". The content of this proposal covered obviously the rights to explore and exploit natural resources. This proposal has been included in paragraph 7, Article 4 7 of the Draft Convention (Doc.A/CON F.62/L.78) as follows: If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.

This proposal (A/CONF.6 2/C.2/L.92) is a very important one for Malaysia in the reservation of its fishing rights. If the content of such provisions remains in the new Convention, Malaysia can expect a better position vis-a-vis the sea area around it: between the Malaysian Peninsular - Natuna Island - Borneo and Billion Island. However, for the other adjacent maritime zones such as the Sulu Sea and Celebes Sea, Malaysia cannot enjoy the same legal status since it has never made any claims of its traditional rights within the archipelagic waters. In conclusion, the area which Malaysia has claimed under its economic zone jurisdiction is regarded as fair among the five ASEAN countries. Therefore, its claim for fishing rights at the Sea Law Conference was prudent. It was not until the very last moment that Malaysia proposed Document A/CONF.62 /C.2/L.92 to reserve its fishing rights within the adjacent sea area, but this is still limited. It is also not easy to understand, in legal terms, why the Malaysian representativ e 44 made its declaration to support the archipelagic concept in 197 4 (or even before) rights to exploit its for at Caracas without making any concrete reservations A/CONF.62 / document proposed Malaysia when 1976 natural resources until C.2/L.92. Finally, Malaysia made its claim on the exclusive economic zone on 25 April 1980. 45

Philippine's Proposals The Philippines, the other archipelagic state of ASEAN has a similar impact on 4!1 See the full text in Appendix D. 44 General Statement of Mr. Abdul Kadir bin YU50f at the Plenary Meeting on the Second Se5Sion of UNCLOS III, 10 july 1974. 45 See the full text in Appendix E.

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OCEAN RESOURCES

the evolution of fisheries jurisdiction as Indonesia. The Philippines also began unilateral claims to archipelagic waters (the area contained within straight baselines measuring 247,845 square nautical miles) and the territorial sea (measured with the implementation of Treaty Limits - 282,394 square nautical miles). Based on the Treaty Limits, 46 the Philippines considered these two maritime zones under its so·called "Historic Waters" which enjoy full sovereignty. In other words, within its "Historic Waters" limit, that encloses approximately 530,239 square nautical miles, 47 the Philippines have full sovereignty for the all-purpose use of the ocean space including fisheries activities. The Philippines delegation claimed the "Archipelagic Theory" and "Historic Waters" at the First Conference on the Law of the Sea in Geneva ( 1958) and also put forward key proposals summarized in: - Document A/CONF.13/C.3/L.60; Document A/CONF.13/C.3/L.65; - Document A/CONF.13/C.3/L.66; - Document A/CONF.13/C.3/L.66/Rev.l. The Philippine position was similar to that of Indonesia, that is, to keep a place in international law of the sea for the preferential right of a coastal state to fish in the area adjacent to its territorial sea. The Philippines agreed that the freedom of the high seas included freedom of fishing, but pointed out that indiscriminate fishing which was carried out in the name of that freedom and which deprived the populations of coastal states of their preferential rights to the living resources with which nature had endowed them was an abuse of that freedom. 48 At the tenth meeting of the Third Committee (UNCLOS I) on 18 March 1958, Mr. Bocobo, the Philippines' representative, also stated that his delegation "therefore supported the widely accepted principle, rightly incorporated in the draft, that the coastal state had a special interest in the conservation of the living resources in any area of the high seas adjacent to its territorial sea. The final convention should, however, be more specific and state categorically that the population of a coastal state had a preferential right in that respect. In short, the right of other states to fish in areas adjacent to the territorial sea of a coastal state should be exercised only on condition that the livelihood of the population of the coastal state was fully safeguarded". With the introduction of the exclusive economic zone concept a decade later, the Philippines would gain another ocean space of 269,006 square nautical miles (measured by the "Historic Waters" limit) or 551,400 square nautical miles 46 The Treaty of Paris was concluded between the United States and Spain on 10 December 1898; the limits are set forth in Article Ill of the said treaty with all the islands em braced in the treaty concluded in Washington between the United States and Spain on 7 November 1900, and in the treaty concluded between the United States and Great Britain on 2 January 1930; see details in Part I. 47 Dubner, op. cit., p. 62. 48 Statement of Mr. Bocobo, the Philippines' delegate at the First Conference on the Law of the Sea (UNCLOS 1), Geneva, 18 March 1958.

PROBLEMS VIS-A-VIS FISHING RESOURCES

75

(measuring from the straight baselines) of economic zone. 49 This would, however, depend directly upon the outcome of the New Law of the Sea regarding the concept of "Historic Waters" proposed by the Philippines. 50 Regarding the establishment of an exclusive economic zone, the Philippine delegate, Mr. Abad Santos stated that "his delegation recognized the concept of economic zone and supported its inclusion in the new Law of the Sea". 51 Meanwhile, the Philippines with nine other countries (Canada, Fiji, Ghana, Guyana, Iceland, India, Iran, New Zealand, and Spain) proposed joint draft articles on a zonal approach to the preservation of the marine environment. 52 It is estimated that the total maritime area that will come under the Philippine fisheries jurisdiction in the near future will be about 799,245 square nautical miles. However, the degree of sovereignty over each zone will depend upon the resulting position of the Philippines at the Third Conference on the Law of the Sea relating to the "archipelagic concept", the "Historic Waters" claim and the "economic zone" approach. On 11 June 1978, President Ferdinand E. Marcos signed a Presidential Decree (No. 1599) 53 which established an exclusive economic zone to take effect on 1 June 1978. The Philippines then became the first ASEAN member to claim an exclusive economic zone (EEZ).

Singapore's Proposals Singapore, a small island state in the centre of the ASEAN countries, is classified, in geo-juridical terms, as a disadvantaged state. This fact is clearly reflected in the speech of the Singaporean delegate, Professor Jayakumar. He said, "Acceptance of an exclusive economic zone concept would mean that large areas of what now constitutes high seas would become national zones with results that would be catastrophic to Singapore". 54 In spite of this fact, however, the Singaporean position remains flexible in that "Singapore's approach to the proposals for an exclusive economic zone or patrimonial sea would be governed by the extent to which and the manner in which those proposals would accommodate the interests of land-locked and shelf-locked countries". Unless the interests of such geographically disadvantaged countries were accommodated, Professor Jayakumar stated that his delegation would be unable to accept any such proposal. 55 The Singapore delegation put forward several alternatives for consideration: firstly, the nationals of the regional or neighbouring land-locked or shelf-locked countries could be recognized as having the right to exploit the living resources in the economic zone on an equal footing with nationals of the coastal states concerned. The nationals of those neighbouring countries would, of course, 49 50 51 52 53 54 55

Adaption from Neptune No.9. U.N. Document A/CONF.62/C.2/L.24/Rev. 1, 19 August 1974. Second Session ofUNCLOS I I - Plenary Meetings (31st meeting), 8July 1974. U.N. Document A/CONF.62/C.3/L.6. 31 July 1974. See the full text in Appendix F. U.N. Sea-Bed Committee on 29 March 1973. Ibid.

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OCEAN RESOURCES

observe all management and conservation regulations of the coastal state. A second possibility would be not to have an exclusive economic zone but a zone in which the coastal state would exercise preferential rights to exploit the resources, while having full rights of management and conservation. A third possibility would be that of a regional economic zone; in other words, the zone adjacent to the territorial seas of coastal states in one region would be deemed to be reserved for the exclusive use of all states in that region regardless of their geographical position. 56 The Singapore delegation also suggested a fourth alternative for safeguarding the interests of the GDS (Geographically Disadvantaged States). This was the subjection of the coastal states' sovereign rights over the economic zone to the International Sea-bed Authority. In this way, the International Sea-bed Authority would be in charge of the exploitation of non-living resources as well as laying down rules and regulations governing the exploitation of living resources in the 57 marine area beyond the 12-nautical-mile limit. The merits of this regional economic zone approach are that it would secure justice for all the states of the region as well as provide a real opportunity for regional co-operation and understanding. Singapore's position vis-a-vis the exclusive economic zone concept is as follows: Firstly, Singapore anticipates the inclusion of the draft articles recognizing the rights de jure and interests of geographically disadvantaged states. Secondly, Singapore is not in favour of views which justify the granting of coastal states rights in the economic zone other than purely economic ones. This 58 view was reflected in Mr. Chao Hick Tin's speech when he urged the Conference sea by adopting draft articles territorial a into zone economic the not to transform such as those which propose exclusive jurisdiction for the preservation of the 59 marine environment as well as matters ancillary to this right. of the economic expansion the limiting Singapore's approach in her fight for it is also for ground; fishing larger a securing of purpose the for zone is not solely the balance of a new economic order in the region. Apart from practical difficulties in the implementation of such an approach, however, it is unlikely that this alternative will be adopted at this stage for the reason that the majority of the coastal states have already accepted the national economic zone concept. Most states would be unwilling under these circumstances to share their mineral resources with other states. The Singapore delegation, while being aware of this situation, still seeks to obtain equal access to the living resources of the economic zones of neighbouring coastal states. 60 Joining with twenty other countries, Singapore suggested draft articles on the participation of land-locked and other geographically disadvantaged states in the exploration and exploitation of living and non -living 56 Jayakumar's statement, U.N. Sea-Bed Committee, 29 March 1973. 57 Chao Hick Tin's statement, Second Session, Second Committee (27th meeting) of UNCLOS III, 5 August 1974. 58 Ibid. 59 Nigerian proposal U.N. Document A/CONF.62/C.2/L .21 Article 1, par. 2. 60 Chao Hick Tin's statement, op. cit.

PROBLEMS VIS

AVIS FISIIINC RESOliRCES

77

resources in the area beyond the territorial sea. 61 Although the contents of this document avoid the use of the term "exclusive economic zone" and fixing its breadth, this joint proposal does recognize a coastal state's right to establish an 26 economic zone (a zone adjacent to the territorial sea for economic purposes). However, when it became clear that the concept of "exclusive economic zone" would be adopted by the majority of states and be part of customary international law, Singapore recognized de facto this concept. As already mentioned, the Ministry of Foreign Affairs of Singapore issued a statement on 15 September 1980 declaring that: "In the light of the said international developments, Singapore will exercise its right to extend its territorial sea limit up to a maximum of 12 nautical miles. Likewise, Singapore will also establish an exclusive economic zone". 63

Thailand's Proposals Thailand enjoys a very good geographical site among the Southeast Asian countries in relation to the use of the sea. With its coasts bordered on one side by the South China Sea and the other side by the Andaman Sea, Thailand has enjoyed full access to and from the high seas for more than a century. This situation has allowed Thailand up until the past decade, to develop its foreign trade by sea with the outside world, as well as to give its fishermen a chance to venture out into the high seas adjacent to the three-mile limit of territorial sea for their living. However, during the last decade, particularly since UNCLOS II in 1960, the international community's attitude towards the use of ocean space has undergone a radical change. Although UNCLOS II was successful in achieving the adoption of a limit for the breadth of the territorial sea and fishing zone, it was evident even then that there was a movement towards extensive marine area appropriation. The notion of political economies is playing a more and more important role and is having a direct influence on the spirit of the new Law of the Sea today. As such, an examination of the coastal state's position vis-a-vzs the use of maritime space can no longer be based purely on geographical criteria; it must take into consideration the "geo-juridical" or even "geo-juridical-politique" conditions. This is certainly true in Thailand's case. Under the EEZ and archipelago concepts, the areas of both the South China Sea and the An dam an Sea which were formerly high seas will come completely under national jurisdiction. Thailand's new geo-juridical position will be that of a zone-locked state. This means that the high seas will not be accessible to Thailand without passing through the economic zones of its neighbours. The distant-water fishing vessels, which constitute most of Thailand's fishing fleet, will no longer be able to fish in the South China Sea or the Andaman Sea; they will be restricted to their small economic zone along the Thai coast. This situation will have drastic repercussions on Thailand's economy since

61 U.N. Document A/CONF.62/C.2/L.39. 62 Chao Hick Tin's statement, Plenary Meeting (33rd meeting), Second S.-ssion of UNCLOS III, 9 July 1974. 63 See the full text in Appendix G.

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OCEAN RESOURCES

the availability of fish is a key factor in its economic development. In spite of the fact that the length of Thailand's coast is almost as long as that of Malaysia and longer than that of Burma, 64 the approximate area of its EEZ is only 94,700 square nautical miles compared to those of Malaysia and Burma who have 138,700 and 148,600 square nautical miles respectively. In this context, the struggle for the "common heritage of mankind" which aims to create a new balance of economic order between developed and developing countries has become an obstacle for the development of some developing countries, such as Thailand. At the Caracas session, 65 Mr. Arun Panupong, the head of the Thai delegation, reminded the Conference that "One thing which should be borne in mind in connection with the jurisdictional zone is that an extension of any distance into the high seas which is res communis does not always deprive only the big or maritime powers, but in some cases can also, in the final analysis, be at the expense of the developing countries themselves. And in the latter cases, if no compensatory considerations are seriously given, the ones who will lose more will be a number of developing nations." Thailand cannot therefore support the EEZ concept until the question of compensatory rights has been equitably determined and legitimately recognized by international law. This view was reflected in the statement of the Thai delegate Mr. Arun Panupong: With regard to the Economic Zone which proposes in essence that within the limit of 200 nautical mile national jurisdiction, the coastal state would have the exclusive authority to establish whatever rules and regulations concerning disposition of resources under its jurisdiction, my Delegation is very sympathetic to the broad national jurisdiction, this, of course, without unreasonable interference with other uses of the sea of non ·resource aspects. But a serious consideration should be taken from two distinct points. The first point ... In the case of 200 mile criteria being finally accepted by the majority it is my Delegation's position that a formula of international standard should be devised so as to ensure compensatory rights or benefits for the countries which do not have potential to extend their jurisdictional sea areas to that limit. The second question involved in the concept of economic zone is that of the nature and contents of coastal state's jurisdiction. My Delegation is of the opinion that distinction should be drawn between the jurisdiction over the living resources. In my Delegation's views, the distinction is justified by the 66 different nature of living resources from non-living ones.

The above statement stressed two points: (1) to ensure compensatory rights; (2) to distinguish the jurisdiction over the living resources from that of the nonliving resources.

64 See Table 2. 65 Second Session of the Third Conference on the Law of the Sea, 10 July 1974. 66 UNCLOS III, Second Session, 10 July 1974.

'

PROBLEMS \'IS-A-\'IS FISHING RESOURCES

79

It is clear that the trend of the Thai proposals with regard to the economic zone concept is orientated to give a very important place to fishing rights. This was revealed particularly when the Thai delegation made it very clear that it would be difficult for the delegation to accept the economic zone approach until the question of sharing the living resources had reached a satisfactory conclusion: "My Delegation would not find it difficult to recognize a coastal state's full jurisdiction over the sea·bed of the zone and its subsoil. It would, however, be in a very difficult position to accept the same degree of jurisdiction over the living resources. My Delegation would advocate, as a condition of its acceptance of the concept of Economic Zone, the sharing on an equitable basis of the living resources in the zone by other interested countries ... " 67 The Thai position is therefore similar to that of Singapore in that both wish to restrict the jurisdiction over the EEZ to a purely economic one. However, Thailand differs from Singapore in that it is able to accept coastal state jurisdiction over the marine environment. The Thai delegate supported his stand in the following manner: If the exercise of the jurisdictional rights of the coastal state takes full effect, close.to 36 per cent of the total area of the seas which represents 70 per cent of the globe will fall under national jurisdiction. Twenty·nine land·locked states will gain practically nothing from the concept of economic zone. Close to 80 coastal states will gain something but less than one third of countries of the world gain substantially. These facts alone have amply shown that the concept of economic zone, with no allowance for the interests of other countries, does not reflect balanced benefit for all countries. This is the very reason why my Delegation has referred to and insists on compensatory rights. The most desirable course, therefore, would be to design a regime which would most efficiently use the living resources available, while taking into account the interests of other nations as well, and avoiding economic dislocation caused by any new regime differing from those now in force. 68

Apart from expressing its views on the EEZ concept, the Thai delegation has not submitted any draft articles on the topic. The delegation has, however, proposed draft articles on archipelagos, 69 requesting that special consideration be given to the interests and needs of the archipelagic states' neighbours with regard to the exploitation of living resources in archipelagic waters. Once the EEZs are established, Thailand's catch will be reduced by an estimated 15 to 39 per cent or about 250,000 to 660,000 metric tons per year. 70 This is why Thailand has had to conclude several bilateral agreements with its neighbouring countries. Fishery pacts have been signed between Thailand and Bangladesh (in March) and ratified in Bangkok on 5 July 1978; 71 between Thailand and Indonesia and between Thailand and India. Thailand has also

67 68 69 70 71

Arun Panupong's general statement, UNCLOS III, Second Session, 10 July 1974. Ibid. U.N. Document A/CONF.62/C.2/L.63. ICLARM Newsletter 1, no. 2 (October 1978): 10. Bangkok Post, 6 July 1978, p. 3.

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72 concluded successful fishing agreements with Burma, Iran, and Oman. Although Thailand is facing such a disadvantaged situation with regard to the use of maritime space, it has finally endorsed the concept of "archipelagic state" owing to the so-called "ASEAN spirit". The Thai Government has also decided to recognize the exclusive economic zone concept and the proclamation was made on 23 February 1981. 73 It seems likely that such official acts will help to minimize conflicts and problems which might result from the recent claims of neighbouring states over their new maritime jurisdictional zones. At this stage, it should be pointed out that, although Thailand does recognize the concepts of the archipelagic state and EEZ like other ASEAN countries, it does not imply automatically that Thailand or other ASEAN members are now bound by the substantial legal norm contained in the provisions of the new Draft Convention on the Law of the Sea. Every ASEAN country, as a sovereign state, has every right to establish its own state practice with regard to the EEZ concept. It is thus essential for the ASEAN members to work out a regional legal framework prior to the adoption of the new Convention on the Law of the Sea. As for Thailand, its state practice is based on international law in general and the official statements made by the Thai delegation at UNCLOS III since 1973.

72 Nation Review: Business (Bangkok), 18 January 1979, p. 9. 7!1 See the full text in Appendix H.

4

STATUS OF DEVELOPMENT OF PETROLEUM AND GAS IN INDIVIDUAL ASEAN STATES

As far as oil and gas are concerned, the ASEAN community is divided into the "haves" and "have-nots". Indonesia and Malaysia are both oil and gas producers with exportable surpluses, while Thailand is only a gas producer and the Philippines 1 is still trying to determine the commercial value of its oil finds. Singapore, on the other hand, is not a producer but has a large refining capacity in excess of its own needs; it is thus the major refining centre as well as an important supply base for oil search in the region. Over the past decade, the world has seen the ASEAN region being transformed from a non·active corner into a busy arena for the myriad activities of multinational oil companies conducting their activities. Prior to the current search, oil exploration and production. in the ASEAN region have been mainly onshore. Drilling for oil in the region began over a century ago, in 1872 in West Java, and production began in 1893. The Miri field in Sarawak was discovered in 1910. In Sumatra in Indonesia, approximately twothirds of the petroleum production of the region originated on land. In the sixties, however, interest shifted to the offshore resources of the region and exploration activity intensified in the late sixties and early seventies. This activity was dramatically reflected in the production statistics of 197 3. Southeast Asian oil production, although representing only 2. 9 per cent of the world's total production, showed an increase of 21 per cent over the previous year, compared to the world's total increase of only 9 per cent. 2 It has been predicted that the trend of increasing production in Southeast Asia will continue and will lead to significant oil production in the future. 3 Rough estimates show also that the combined reserves of unassociated gas owned by Indonesia, Malaysia, Thailand, and Brunei are close to 90".5 trillion cubic feet. 4 Offshore exploration in the region involves American, European, and Japanese companies which totalled 36 in number at the end of 1971. This phase in oil and 1 According to the AFP (Agence France Press), since 27 January 1979 when the Philippines first discovered an oil well called "South Nido" off Palawan Province, 370 miles southwest of Manila, it has produced a daily output of 4,000 barrels of "sweet crude" that is worth US$53,000; Bangkok Post, 30 January 1979, p. 17. 2 Ng Shui Meng, The Oz1 System zn Southeast Asia, p. 2. ~ Ibid. 4 Petromzn Asia, January 1981, p. 26.

81

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OCEAN RESOURCES

gas exploration began in 1966 with the granting of a large offshore drilling concession by the Indonesian Government to IIAPC0 5 in the western part of the Java Sea. Since then, hundreds of offshore wells have been drilled in the continental shelf areas of Indonesia, Malaysia and Thailand. 6 The area of greatest interest to oil companies is the world's biggest continental shelf - the Sunda Shelf. The ASEAN nations are all situated either on this shelf or in the case of Indonesia, on the Sahul Shelf (which is another promising stretch adjacent to the Sunda Shelf). Most of the earlier offshore exploration in the region was conducted in marine areas adjacent to producing land areas. Several reasons have been put forward to explain the sudden interest in oil and gas by many foreign oil companies in the region. Among them are the uncertain political situation in the Middle East, the consequent necessity by Japan - a major oil consumer - to diversify its source of oil supply, and the low sulphur content of Indonesian and Malaysian crude oil. But the most important reason is that much faith has been placed on the belief, subsequently supported by surveys and drilling undertaken, that the continental shelf 7 may contain one of the largest oil reserves known to man. 8 The recent discoveries in Indonesia - along the Australian North West Shelf - as well as in Malaysia and Brunei - in the South China Sea and in the Gulf of Siam - have provided evidence that the petroleum potential of Southeast Asia is substantially greater than previously believed. 9 In the southern part of the South China Sea, production is now concentrated on the shelf surrounding Borneo, but the oil and gas prospects of the western coast of the Thai-Malay peninsula - that is, the Straits of Malacca area and its extension into the Andaman Sea - are thought to be far from negligible. 10 In the Gulf of Siam, it appears that hydrocarbons are dispersed, in small deposits, although the total number of borings is still too small to provide meaningful statistics. It is also possible that the vast continental shelf of the South China Sea contains one or more gas provinces (between Vietnam on the west side and Borneo and Palawan on the east} with the exception of the southern part. An extensive seismic survey of East Asia's shelves has also been conducted under the auspices of the United Nations' Committee for Coordination ofJoint Prospecting for Mineral Resources in Asian Offshore Areas (CCOP). It is certain that the renewed and increased interest in oil and gas exploration in the offshore areas of

5 Independent Indonesian American Petroleum Company. 6 During the period 1966 - 70. about 110 offshore wells were drilled in the continental shelf of the said areas. 7 In offshore areas the most favourable areas for hydrocarbon accumulation in the sea· bed are thought to be in the sedimentary strata underlying the continental shelf and the upper part of the continental slope. 8 See Roderick O'Brien, South China Sea Oz1- Two Problems of Ownership and Development, p. 78; Ng Shui Meng, op. cit., p. 93; Corazon M. Siddayao, The Offshore Petroleum Resources of South-East Asia, p. 205. 9 Corazon M. Siddayao, The Offshore Petroleum Resources of Southeast Asia: Some Potential Conflicts and Rekzted Economic Factors, p. 29. 10 M. Mainguy, Economic Problems Rekzted to Oil and Gas Exploration, p. 92.

Table 11 ASEAN Oil, Gas, and Petroleum Data, 1974-77.

0

tTl

Land Area (sq.m.)

Philippines Thailand Singapore Indonesia Malaysia

115,700 198,456 225 735,267 128,430

Prospectzve Land Area (sq.m)

Oil Consumption ('OOObld)

24,300 66,000

190 165 40

312,600 56,500

Oz1 Consumption per cap (blyear)

Petroluem Production ('OOObld) (1977)

1.6 1.4 6.5

(20- 40)