Nengye Liu, Associate Professor and Director of the Centre of Environmental Law, Macquarie University, Australia
Oliver Moss, Fourth-year Bachelor of Environment and Bachelor of Laws student volunteer for the Centre of Environmental Law, Macquarie University, Australia
Since President Xi Jinping’s 2012 rise to power, China has been a key player in governance of areas it identifies as ‘strategic new frontiers’ (Xinhua 2017). As the world’s second largest economy, China is now positioned to promote norms which serve its interests in modern-day Polar Region governance (Antarctic Treaty 1959).
International law is understood, interpreted, applied and approached by China differently from the West (Roberts 2017). It must then be asked – how will China seek to influence and shape international law in the Polar Regions, in order to renegotiate its role within a post-war order largely constructed by the United States?
Globally, fisheries are declining significantly (Food and Agriculture Organisation of the United Nations 2020). Marine living resources in relatively pristine Polar waters are now attracting China’s attention. Already the world’s largest distant water fishing (DWF) nation, China’s DWF industry continues to grow rapidly, with policy adopted to expand into Polar waters (China Ministry of Agriculture and Rural Affairs 2017).
Although the central Arctic Ocean (CAO) is ice-covered and no commercial fishing has occurred, tragedies may transpire without effective regulation (Zou and Huntington 2018). Antarctic marine living resources have been governed by the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) since 1982 (Reid 2019). China is a latecomer to this, having become a contracting party to the Convention and member of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in 2007.
Using the conservation of marine living resources in the Arctic and Antarctic as case-studies to examine the implications of a rising China to the future governance of the Polar Regions, this Article will look at China’s positions on international fisheries law in polar waters. Norm dynamics literature on international relations will then be used to analyse what norms China promotes and resists, and the motives behind China’s dilemma between norm-promotion and norm-resistance. Some predictions on China’s future positions in polar governance will be provided.
China and International Fisheries Law
Arctic
China is involved in Arctic fisheries governance primarily through participation in Central Antarctic Ocean Agreement (CAO Agreement) negotiations (Schatz, Proelss and Liu 2019). The five Arctic coastal states that hold environmental stewardship of the Arctic Ocean (Canada, Denmark, Norway, Russia and US) recognise that to establish an effective legal regime to prevent unregulated fishing in the CAO, key high seas fishing states must be involved (Declaration Concerning the Prevention of Unregulated High Seas Fishing in the CAO 2015). In 2015, China was invited to negotiate on a legally binding agreement to regulate CAO commercial fishing. China supported the adoption of the CAO Agreement in 2018, due to its limited interest in Arctic fishing and desire to depict itself as collaborative (State Council of P.R. China 2018).
Antarctica
China has been more actively involved in the Antarctic. In the Southern Ocean, the Commission on the Conservation of Antarctic Marine Living Resources (CCALMR) has historically been a leader in precautionary and ecosystem-based management of fisheries and innovative measures to combat prohibited fishing (Press, Hodgson-Johnston and Constable 2019). Contrary to several countries, China views it as a regional fisheries management organisation instead of a conservation body (China Ministry of Agriculture and Rural Affairs 2017).
Marine Protected Areas (MPAs) are believed to be an effective area-based management tool to protect the Southern Ocean’s pristine marine ecosystems and preserve vast areas as scientific reference zones for researching climate change. China opposes them, instead promoting the CCAMLR. China also argues that no-take MPAs lack legal basis since the CAMLR Convention provides for ‘conservation’ to include rational use, allowing commercial fishing to continue (CAMLR Convention 1980).
Despite this, American lobbying in 2015 convinced China to change its position to support the US/New Zealand proposed Ross Sea region MPA – enabling its 2018 establishment (CCAMLR 2016). However, the original size of 2.27 million km2 was reduced to 1.55 million km2. ‘Research fishing’ in the Special Research Zone and Krill Research Zone was also allowed. China strongly opposes other Southern Ocean MPA proposals (CCAMLR 2017), instead asserting the need for solid research and monitoring plans as an MPA prerequisite.
Due to climate change, MPAs are a precautionary measure to better understand and protect data-poor areas like East-Antarctica. The stalemate of establishing CCAMLR MPAs demonstrates the difficulty in materialising precautionary approaches in fisheries management when real fishing interests exist.
China and Norm Dynamics in Polar Waters
A norm typically ‘equates to one or more of the substantive provisions of a treaty’ (Scott 2019). Norm dynamics are driven by ‘norm entrepreneurs’ – actors that set out to alter the prevailing normative order according to their favoured ideas or norms (Finnemore and Sikkink 1998). These norm entrepreneurs call attention to and create issues that drive new norms which change the behaviour of other powerful international actors (Finnemore and Sikkink 1998). Contrastingly, norm antipreneurs resist normative change (Bloomfield and Scott 2016).
Norm dynamics literature presumes that Western liberal powers play the role of norm entrepreneurs to promote ‘good’ norms, like environmental protection and human rights. It is interesting to understand how and why China goes about producing norms, which is crucial for future international cooperation and sustainable environmental governance in the Polar Regions.
China traditionally resisted norms in most international law. However, its transformation into the world’s second largest economy generated strong political will to expand its interests (Lin 2011). China has shifted from norm antipreneur to entrepreneur.
This is evident in CCAMLR negotiations on the establishment of MPAs. China has been against no-take MPA proposals while promoting its idea of ‘rational use’ in Antarctic waters. Before 2017, China held a different interpretation of the CAMLR Convention’s Article II from most Western liberal countries. It emphasised that ‘rational’ use is equal to ‘conservation’ in CCAMLR waters – prohibiting complete bans of commercial fishing by CCAMLR MPAs.
After the Ross Sea MPA’s establishment, China became more proactive in promoting ‘rational use’, with specific proposals for research and monitoring plans, in order to set a high threshold for establishing MPAs. These proposals challenge the application of the precautionary principle as the legal basis for establishment of Southern Ocean MPAs.
China’s rise remains a ‘new development’ in Antarctica, generating anxiety in the West. It clearly wants sustainable utilisation over pure environmental protection as the pillar of the Antarctic Treaty System. China believes the CCAMLR is working very well, with the country utilising the Southern Ocean’s ‘Olympic style fisheries’ system to deploy commercial krill fishing vessels (ASOC 2019).
China holds the same idea of ‘rational use’ for sustainable fisheries in the Arctic (State Council of P.R. China 2018). While the CAO Agreement temporarily bans commercial fishing for 16 years, this duration is a political rather than science-based decision. Considering its policy to expand in polar fisheries (Agreement to Prevent Unregulated High Seas Fisheries in the CAO 2018), China’s next move after ratifying the CAO Agreement will likely be to push the governance of fisheries in the CAO towards the establishment of a RFMO.
Future Predictions
So far, China has stated that it will follow existing international law of the Arctic and support the stability of the Antarctic Treaty System. This may be because China is not a coastal Arctic state, while the Antarctic Treaty System is resilient and well-founded. China would be unwise to disobey existing international polar law.
Despite this, the rise of China is shifting the balance of power and order in the polar regions. This may eventually impact future international polar law developments.
China has become both a norm entrepreneur and antipreneur, through opposing environmentalism while also promoting sustainable use. With many purpose-built fishing vessels in polar waters, China will probably push the CAO Agreement into a RFMO after the 16-year-period. Moreover, China will likely oppose any no-take MPA proposals in the Southern Ocean.
However, given the precedent set by the establishment of the Ross Sea region MPA with multiple zones when faced with increased international pressure of the protection of the Antarctic water, China may reconsider its MPA opposition, providing proposed MPAs allow some commercial fishing.
References:
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean 2018, Article 13, available at: http://www.dfo-mpo.gc.ca/international/arctic-arctique-eng.htm.
Antarctic Treaty 1959, UNTS 402, opened for signature 1 December 1959, entered into force 23 June 1961; United Nations Convention of the Law of the Sea 1982, 21 ILM pp. 1261-1354, opened for signature 10 December 1982, entered into force 16 November 1994.
ASOC 2019, Moving towards a new era in ecosystem-based krill fishery management, CCALMR, SC-CAMLR-38/BG/22, available at: https://www.asoc.org/storage/documents/Meetings/CCAMLR/38/asoc-paper-22-2019.pdf.
Bloomfield, A. & Scott, S.V. 2016, ‘Norm antipreneurs in world politics’, in: Bloomfield, A. & Scott, S.V. (eds.) Norm Antipreneurs and the Politics of Resistance to Global Normative Change, pp. 1-19.
CCAMLR 2012, Report of the XXXI Meeting of the Commission, p. 33.
CCAMLR-XXXV/18 2017, Proposal on a Conservation Measure Establishing the Weddell Sea
Marine Protected Area (WSMPA); CCAMLR 2017, Report of the XXXVI meeting of the commission, available at: https://www.ccamlr.org/en/system/files/e-cc-xxxvi_0.pdf.
China Ministry of Agriculture and Rural Affairs 2017, 13th Five-Year Plan for the Development of National Distant Water Fishing Industry, China Ministry of Agriculture and Rural Affairs, China.
Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) 2016, Conservation Measure 91-05 Ross Sea Region Marine Protected Area, CCAMLR.
Convention of the Conservation of Antarctic Marine Living Resources 1980, UNTS 47 p. 1329, opened for signature 1 August 1980, came into force 7 April 1982.
Declaration concerning the prevention of unregulated high seas fishing in the central Arctic Ocean 2015, available at: https://www.regjeringen.no/globalassets/departementene/ud/vedlegg/folkerett/declaration-on-arctic-fisheries-16-july -2015.pdf.
Finnemore, M. & Sikkink, K. 1998, ‘International Norm Dynamics and Political Change’, International Organisation, vol. 52, pp. 887-917.
Food and Agriculture Organisation of the United Nations (FAO) 2020, The State of the World Fisheries and Aquaculture, FAO, available at: http://www.fao.org/state-of-fisheries-aquaculture.
Lin, J.Y. 2011, ‘China and the global economy’, China Electronic Journal, vol. 4, no. 1, pp. 1-14.
Press, J.A., Hodgon-Johnston, I. & Constable, A.J. 2019, ‘The principles of the convention on the conservation of antarctic marine living resources: why its commission is not a regional fisheries management organization’, in Liu, N., Brooks, C.M. & Qin, T. (eds.) Governing Marine Living Resources in the Polar Regions, Edward Elgar, pp. 9-29.
Reid, K. 2019, ‘Commission for the conservation of Antarctic marine living resources (CCAMLR): implementation of conservation of Southern Ocean marine living resources’, in: Liu, N., Brooks, C.M. & Qin, T (eds.) Governing Marine Living Resources in the Polar Regions, Edward Elgar, pp. 30-42.
Roberts, A. 2017, Is International Law International? Oxford University Press, Oxford.
Schatz, V., Proelss, A. & Liu, N. 2019, ‘The 2018 agreement to prevent unregulated high seas fisheries in the central Arctic Ocean: a critical analysis’, International Journal of Marine Coastal Law, vol. 34, no. 2, pp. 195-244.
Scott, S.V. 2019, ‘Treaty-making in international organizations: international relations theory’, in: S. Chesterman, D.M. Malone, S. Villalpando (eds.) The Oxford Handbook of United Nations Treaties, p 39.
State Council of P. R. China 2018, China’s Arctic Policy, State Council of P. R. China, available at: http://www.scio.gov.cn/zfbps/32832/Document/1618243/1618243.htm.
Xi jinping, H.E. 2017, ‘Work together to build a community of shared future for Mankind - speech by H.E. Xi jinping, in: President of the People’s Republic of China at the United Nations Office at Geneva’, transcript, Xinhua, available at: http://www.xinhuanet.
Zou, L. & Huntington, H.P. 2018, ‘Implications of the convention on the conservation and management of Pollock resources in the central Bering Sea for the management of fisheries in the central Arctic Ocean’, Marine Policy, vol. 132, pp. 134-135.