El problema arqueológico

Taiwan is located in the subtropical area through which the Tropic of Cancer passes;

and the island is located at the boundary between the Eurasian Plate and Philippine Sea Plate, through which several sea currents pass. The marine biodiversity is among the best in the world. A video clip report on the National Geographic Channel says:¹³⁰

“The Biodiversity Research Center of Academia Sinica in Taiwan has collected over 57,700 indigenous species during past decades, of which some are 13,000 species of marine organisms.

Compared with the self-proclaimed title of “country with the most marine species in the world”, there being 33,000 in Australia and in Japan, Taiwan is not inferior in any respect. This is because the territorial waters and the latitude and longitude coverage of territory in Australia and Japan are far greater than that of Taiwan. The territorial area of Taiwan consists of 0.025% of the whole world. After the standardized calculation, the number of marine species in Taiwan is 400 times more than other countries, and the land species are 100 times more than other countries.

Therefore, Taiwan is truly a kingdom of biodiversity. For example, the total number of fish species in Taiwan is nearly 3,000, which make up one-tenth of the world’s total number. Among them, the total numbers of Chaetodontidae family (butterflyfish) and Pomacanthidae family (banded angelfish) are the highest in the world”.

Not surprisingly, offshore fishing started early in Taiwan, around 400 years ago.

Referring to the research data,¹³¹ in terms of period and fishery management features, the present work suggests that the history of offshore fishery in Taiwan can be divided into five stages. Moreover, in order to determine how best to successfully develop a sustainable

130 See https://www.natgeomedia.com/news/ngnews/12596

131 Hu, S.H. (2006, December 1). The History and Culture of Taiwanese Fishery Industry. Oceanic Culture Journal, 2, p.25-48. Retrieved from https://www.nmmst.gov.tw/other/B160-wc.pdf

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fishery, the present work will consider the legal aspects of fishery management in Taiwan and identify controversial aspects of the system that need improvement.

6.1.1 History of Taiwan Coastal Fisheries

During the Chinese Song Dynasty (960-1279 AD), many Chinese Southern Fujian fishermen often fished in the western part of Taiwan and the waters of Penghu. However, by reason of the civil war in China, the Government of the Ming and Qing dynasties imposed a

"sea ban" on several occasions, restricting fishermen from fishing in the sea and inspecting fishing boats. Therefore, there were no fishery management policies in Taiwan during that period. We therefore utilize the year 1624 AD, when the Dutch first came to Taiwan, as the year when fishery management in Taiwan commenced.

1. Fishermen Tax Era: 1624-1877, Dutch-Ruled Period and Ming Cheng Monarch Period, focusing on fisheries tax.

2. Era of Inaction: 1877-1895, Qing Dynasty, mainly a sea banned era.

3. Modernization Era: 1895-1945, era of Japanese occupation and development of modern fisheries and scientific research.

4. Development Era: 1945-2017, after World War II, redeveloped fisheries of Taiwan, a period of static management.

5. LOHAS Era: 2018-present, Fisheries Agency has established various fisheries advisory groups, which is dynamic management.

First: Fishermen Tax Era

When the Dutch ruled Taiwan (1624-1662), they began to collect a tithe mainly on the mullet fishery in Taiwan, one-tenth of the mullet catch paid as a mandatory tax to the Dutch

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East India Company in Taiwan. At that time, about 300 to 400 Chinese Junks were fishing between China and Taiwan in the East China Sea. Most boats concentrated on winter fishing for mullets. The catch of fish was estimated to be up to 1 million catties,¹³² so one-tenth of the tax was about 100,000 catties. The Dutch East India Company therefore established a system of customs declarations, licensing, landing declarations, and tax payment for fishing boats in Taiwan.

In 1662, the Ming Zheng monarch of the Ming Dynasty defeated the Dutch, ruled Taiwan, and continued to collect taxes on fisheries and other taxable objects, including aquaculture and various fishnets. Ming Zheng and the Dutch both managed fishing boats and fishing methods for the purpose of tax collection, but the tax collection methods were different. Unlike the Dutch tithe, Ming Zheng mainly collected silver and unexpectedly achieved the fishery management effect of obtaining some fishery data.

According to a Japanese scholar, Takashi Nakamura (1910-1994), who examined Dutch historical materials, in the winter of 1657 the fishermen caught a total of 318,335 mullets.¹³³ In 2017, the Taiwan Fisheries Agency counted 711,986 mullets.¹³⁴

132 The catty, commonly in China and Taiwan, symbol “斤”, is a traditional Chinese unit of mass used across East and Southeast Asia, notably for weighing food and other groceries in some wet markets, street markets, and shops. The catty is traditionally equivalent to around 1⅓ pound avoirdupois, formalized as 604.78982 grams. In some countries, the weight has been rounded to 600 grams (Taiwan, Japan, Korea and Thailand). In China, the catty has been rounded to 500 grams. Retrieved from https://en.wikipedia.org/wiki/Catty

133 Liu, Fang-wei.(劉芳薇) (Interpretation, 2002) Taiwan Three Character, p.171. (Original: Wang, Shih-peng(王 石鵬), 1900). Taiwan: Taiwan ancient books.

134 711,986 is the official statistics number from Taiwan Fisheries Agency. But many people in the fishing industry told the author that there are still many mullets catches that have not been counted. See https://www.fa.gov.tw/cht/PublicationsAchievementCount/content.aspx?id=7&chk=fb3b063e-b13b-4ace-be b8-ba536d9112d0&param=pn%3d1

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In addition, there were mullet fisheries conservation measures, such as "mullet flag".

The East China Sea mullet travel to Taiwan every year before or after the winter solstice. The mullet fishing season is short, and the fishing ground is concentrated. The Dutch issued certificates, and the Ming Government issued mullet flags. Such a legal system could not only levy a fishing tax, but also can crack down illegal fishing without a fishery license.

From the perspective of modern fisheries law, it was already under the management of

“Directed Fisheries”.¹³⁵

Ming Zheng limited the distribution of mullet flags to 94 per year. The mullet fishing boat must first be granted permission by the Government to fish and receive the mullet flag.

The name of the fisherman is written on the flag. Each flag owner has to pay annual fee. The control of the mullet flag was the first historically documented fishery resource conservation measure in the history of Taiwanese waters.

In 1683 the Qing Dynasty defeated Ming Zheng and ruled Taiwan. The fishery policy of issuing 94 mullet flags per year continued. In 1753 (year 18 of Emperor Qianlong of the Qing Dynasty), the government exempted two fishermen who had a mullet flag but suffered natural disasters from the payment of taxes. The actual number of mullet flags taxed that year was 92. Until 1877, the Fujian Governor, Ding Ri-Chang, cancelled many fisheries taxes, including the mullet flag tax, as general tax cuts.¹³⁶

135 According to Article 36 of the Taiwan Fisheries Law: "The term ‘specific fishery’ as used in this Law refers to a fishing vessel engaged in the harvesting of aquatic animals and plants designated by the competent authority.

136 Refer to Taiwan General History.

134 Second: Inaction Era

Although the Qing Dynasty abolished the fishery tax, there were no other new fisheries management measures. This meant that relevant fishery data is lacking for this era.

Third: Modernization Era

In 1895, after defeating the Qing Dynasty in the First Sino-Japanese War, Japan began to govern Taiwan. Japan re-imposed the tax on the mullet fishery, but in a different way.

After the fishermen caught the mullet, they were taxed by the Japanese local government according to the transaction amount when trading in the market. In addition, the Japanese established an important fishery department structure in Taiwan, including the Japanese unique "Fishermen's Association" and undertook a scientific survey of aquatic products. The Japanese also introduced industrialized fisheries technologies to Taiwan. At the outset of Japanese occupation, the fish catch in Taiwan was less than 5,000 tons. In 1912, modern power fishing boats and fishing techniques were introduced, such as steamboat trawling, whaling technology, and long line fishing. In 1921, the fish catch in Taiwan reached 23,306 tons. In 1940, the fish catch in Taiwan reached 119,520 tons, which reached the highest peak.¹³⁷ At the end of the Japanese occupation period, there were 1,499 powerboats in Taiwan, 3,988 sampans, and 5,755 fishing rafts. The fishing industry was very active.

Fourth: Development Era

In 1945, after the end of the World War II, the Kuomintang Government came to power in Taiwan. There were 697 motorized fishing boats in Taiwan, mostly small fishing boats, sampans, and fishing rafts under 20 tons. The fishery production in 1946 was only 16,860

137 Council of Agriculture, Taiwan. (2013, June). Taiwan's Agricultural Century - Fishery, p.54. Retrieved from https://www.fa.gov.tw/upload/168/2013020812470776611.pdf

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tons. Therefore, policies focused on restoring offshore fisheries. In 1951, the Government encouraged private shipbuilding, and gradually the offshore fishery began to recover. Fishery production increased year by year. From 1952 to 1960, the first and second phases of economic construction and design were implemented. The Government invested funds in offshore and coastal small-scale fisheries. In 1952, fishery production rose to 121,697 tons, surpassing the highest standards of the Period of Japanese Rule.¹³⁸ In 1980, the offshore and coastal fishery production of Taiwan reached about 370,906 tons.

Since then, because of the proclamation of EEZs, the fishing sea areas open to fishing boats were reduced. Overfishing also caused an ecological crisis, and fishery production began to decline. Over the past 20 years, the offshore and coastal fishery production of Taiwan remained between 200,000 and 250,000 tons.¹³⁹

In 1967, in order to protect benthic fish resources, Taiwan introduced a shipbuilding system giving preference to trawlers under 300 tons. Since 1989, in order to control the amount of fishery investment, the build-limitation on fishing vessels had been fully implemented. During this period, although the government implemented management measures for several fisheries, such as trawler management in 1999 and Japanese anchovy fisheries in 2009, there were no civil environmental groups to participate in relevant meetings.

Fisheries regulations were dominated by the Government. However, at that time, conservation groups with the ocean as the sole axis in Taiwan had not yet emerged.

In December 2013, the Taiwan Fisheries Agency historically first invited marine conservation groups to participate in public hearings on the crab management draft, but this

138 See https://atc.archives.gov.tw/treasure/html/section07/section07_26.html

139 All of the above data are official data of the government. However, they have not been fully tested by the scales. Therefore, it can only be used as a reference for a trend change.

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was uncommon. Since then many non-governmental environmental groups have held press conferences repeatedly to criticize the trawler management of Fisheries Agency, the process and content of the revision being led by the Fisheries Agency. For example, the Fisheries Law should be amended so that the competent authority in charge of executing punishment is changed from the local to the central government in order to prevent undue influence on local government from local public opinion not to impose fines for illegal fishing. ¹⁴⁰

To sum up, the decision-making model of the Fisheries Agency during this period was mainly the government official seeking advice from the Fishermen's Associations and scholars. NGOs were not part of the decision-making system of the Fisheries Agency.

Fifth: LOHAS Era

LOHAS means “Lifestyles of Health and Sustainability”, which is precisely what fisheries in Taiwan need. Health should be the fundamental human right standard for all crewmembers and fishermen, whereas sustainability means how we take advantage of the ocean resource. Only when these kinds of lifestyles prevail in the world of fisheries will sustainable fisheries endure and, in the end, attract the younger generation to participate in this line of work.

On 10 January 2018, in a heated public hearing on mackerel fishery management, the present author opposed allowing fishermen to undertake fishery management by way of

“spontaneous management”, suggested that the Fisheries Agency should establish a

“Mackerel Fisheries Advisory Panel”, and should incorporate this advisory panel into environmental groups. The Director of the Fisheries Agency, Tianshou Chen, agreed to this

140 In the author's experience, the earliest "Marine Conservation Campaigner" in Taiwan is the Wilderness Protection Association in 2009. The Wilderness Protection Association is the largest environmental group in Taiwan, and the present author took over the position of campaigner in 2011. Greenpeace began offering a marine conservation campaigner in Taiwan in 2010.

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suggestion during the meeting.¹⁴¹¹⁴² The “Mackerel Fisheries Advisory Panel” was officially established on 28 March 2018. Three members are representatives of citizen groups, and the present author is one such member.

The Fisheries Agency has used the Mackerel Fish Fisheries Advisory Panel as an example for other advisory panels. In 2018, the preparatory meetings and formal meetings of three advisory panels for gem corals, landing declarations, and squid were held. Although many fishery management measures in Taiwan need to be strengthened in order to ensure sustainable fisheries, Taiwan's coastal and offshore fisheries management has entered a new era.

In this LOHAS Era, modern fisheries management measures are essential. The following section introduces some ideal fishery management tools.

6.1.2 Trilogy of Contemporary Sustainable Fisheries Management

Although Taiwan borders an ocean with high biodiversity, according to the Ocean Health Index, Taiwan ranked 121^st among all 221 Exclusive Economic Zones, whereas Australia ranked at 22; South Korea, 41; Japan, 64; United States, 109; and China, 160. The Index measures the status of the ocean around the globe. An Index score for 220 countries and territories, the Antarctic region, and 15 sections of the high seas, is calculated using existing global data.¹⁴³

141 January 10, 2018, public hearings of Taiwan Fisheries Agency's mackerel fish management measures adjusted. See https://youtu.be/uaGnxI3Tdk4?t=2h17m30s

142 Press Release of the Taiwan Fisheries Agency on the conclusion of the mackerel fish fishery public hearing.

See https://www.fa.gov.tw/cht/NewsPaper/content.aspx?id=2456&chk=37fb9048-d916-4fd9-988c-0cdf8f0 c2f2f

143 See http://www.oceanhealthindex.org/region-scores

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In order to avoid the fate of marine ecology in Taiwan ending tragically, scientific and legal methods are needed for its management. This is the “fifth era: LOHAS Era”. Fisheries management is not a difficult task for many countries, nor is it a mission impossible. An opinion expressed by United States National Oceanic and Atmospheric Administration on the FishWatch website suggested that the fisheries management has three steps:¹⁴⁴ Science, Management, and Enforcement. Ideally, these three steps are continuous. However, in terms of the politics and national expenditure, certain difficulties cannot be overcome immediately.

For example, politicians may not be willing to designate a budget for marine scientific research. We cannot cease to manage ocean affairs and law enforcement due to the lack of long-term marine scientific research data. In the present author’s view, these three steps should be regarded as three independent tools, as follows:

A. Science

Effective fishery management starts with accurate scientific information about fish and fisheries. The law requires that fishery managers use the best science available to make managerial decisions. To achieve this, fishery scientists need to undertake the following:

1. conduct fish stock assessments to estimate how many fish species are in the water.

2. conduct research on the biology of fish and ecosystems.

3. collect historical information about the fishery, including economic and social factors.

4. keep track of current harvests.

In Taiwan, no more than ten species of fish receive government funding for long-term scientific research; research on marine ecology in Taiwan is not sufficient. And the validity

144 See https://www.fishwatch.gov/sustainable-seafood/managing-us-fisheries

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of most data in the annual fishery report encountered challenges. This problem became one topic of the “Citizen Fishery Forum” held by the government in 2016. The present work tries to resolve these difficulties by introducing a “Landing Declaration” with a smart regulatory form and creative intelligent digital technology proposed in Chapter Ten.

B. Management

Fishery resources are never unlimited. If fishing power is not controlled in various ways, fish stocks will collapse long before they are able to reproduce themselves. Various forms of management are possible. Scientific information is provided to fishery managers in order to establish to set harvesting goals and operational requirements for each fishery.

Input and output controls are two narrowly defined techniques of fishery management that can lead to responsible fisheries, including limitations on the amount of fish allowed to be harvested; the number of fishing vessels which can participate in a fishery; and requirements as to where, when, and how fish can be caught. These will be discussed in Chapter Six below.

However, before exploring the methodology of input and output controls, several fundamental questions must be clarified, among them: “who” owns the fish in the sea, “who”

is defined as a fisherman, and “who” is in charge of fisheries management. The three topics need to take into account the latest concepts of marine conservation and sustainable fishery in Taiwan. And that is the core reason for undertaking the present work.

C. Enforcement

Although the legal debate is important, effective enforcement is the crucial tool and the key to the success of sustainable fisheries management.

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The National Oceanic and Atmospheric Administration, the United States Department of Commerce (NOAA) Fisheries Law Enforcement agents and officers use such traditional enforcement techniques as patrols, investigations, satellite tracking systems, and education and outreach.¹⁴⁵ The Taiwan Government uses similar methods, but these law enforcement agents are unable to penetrate bureaucratic barriers in Taiwan. Therefore, the present author has proposed new technological policies to assist or even replace existing manpower to conduct the Monitor, Control, and Surveillance (MCS) promoted by the FAO and set out in Chapter Ten. While MCS, in the basic FAO definitions, does not include enforcement, they are cornerstones to identify and prevent such illegal activities as fishing out of season, fishing in restricted areas, and exceeding catch limits.

Taken together, these three tools make sustainable seafood more possible to realize;

and keep the marine environment healthy, fish populations thriving, and our seafood industry on track.

145 Ibid.

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6.2 Who Is a Fisherman? Capital-Labor Relations in Fisheries

After the end of World War II, fisheries industries developed rapidly, and the structure of investment and operation became more complicated. Wealthy individuals sometimes owned several fishing boats, but never went fishing at sea. Many poor people owned no boat and worked with or for others to fish all the year. This section clarifies the modern role of

“fisherman” to determine who is “capital” and who is “labor”. Are all fishermen and crew labor? Who are the bosses? The purpose is to find a better legal solution to resolve the low-wage issues of crew and fishermen. Also, to determine who should be responsible for illegal, unreported, and unregulated fishing.

6.2.1 Who Is “Capital” in Fisheries: Masters of Fishing Boats or Captains?

When defining who is “capital”, we begin with laws in force for a legal definition. In

When defining who is “capital”, we begin with laws in force for a legal definition. In