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Ambiguous fisheries law sets up in-your-face conundrum for China

by Mark J. Valencia

Special To The Japan Times

The ambiguity of China’s claims in the South China Sea has long been the main obstacle to resolving or even managing the jurisdictional disputes there.

Despite oft-repeated requests from rival claimants as well as the United States, China has declined to clarify exactly what it claims and why.

Its infamous nine-dashed line encompassing most of the South China Sea is open to several interpretations. Is it a depiction of a national boundary claiming all waters and land features within it, or is it a claim only to the islands within it and their “adjacent waters”? And if the latter, what is the extent of the “adjacent waters” — 12 nautical-mile territorial seas, 200-nm exclusive economic zones (EEZs) or something else?

Persistent questioners may wish to be careful what they ask for — they may not like the answer. The recent “revision” of Hainan’s fisheries regulations, which became effective Jan. 1, may have brought us closer to clarifying China’s claims.

The Philippines, Vietnam, the U.S., Japan and even Taiwan have protested. Some analysts say the revised rules violate the ASEAN-China 2002 agreed Declaration on the Conduct of the Parties in the South China Sea, which calls for the parties to “exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability.”

They also say that it undermines the advances made by President Xi Jinping and Premier Li Keqiang during their 2012 “good will” visits to Southeast Asia. According to M. Taylor Fravel of MIT, these rules are not new but simply Hainan’s implementation of China’s 2004 fisheries law, and similar laws promulgated in 1993 and 1998.

The Hainan’s People’s Congress reaffirmation of these laws contains an article stating that “foreigners or foreign fishing ships entering sea areas administered by Hainan and engaged in fishery production or fishery resource surveys should receive approval from relevant departments of the State Council.”

The problem is that the previous versions of the law specified Hainan’s jurisdiction as including much of the South China Sea. Xinhua — the China state news agency — reported in conjunction with these “revised” rules that they apply to 2 million square kilometers in the South China Sea.

Moreover, existing Chinese law stipulates that a foreign fishing vessel “that enters these waters without permission will be expelled and have its catch confiscated, and be fined up to $83,000.”

China’s Foreign Ministry spokesperson Hua Chunying said the regulations were “according to international law” and that “if someone feels the need to say that technical amendments to local fisheries regulations implemented many years ago will cause tensions in the region and pose a threat to regional stability, then I can only say that if this does not stem from a lack of basic common sense, then it must be due to an ulterior motive.”

Perhaps, but the critical questions now are if, when and where the revised rules will be enforced. One commentator speculates that enforcement will be selective depending on the warmth or coolness of the flag-state’s bilateral relations with China.

Another, Lin Yuan, director of legal affairs for the Hainan Department of Oceans and Fisheries, implied that enforcement would be difficult given the sheer size of the area to which it applies and China’s present limited enforcement capabilities. Moreover, the rules are likely to be ignored en masse by other claimants to the area so there would likely be many “offenders.”

These regulations may not articulate new policy regarding foreign vessels in China’s claimed waters, but they do beg the questions of “why now” and “why has China made an in-your-face reaffirmation of such a highly controversial provision”?

Doing so plays right into the U.S. attempt to convince members of the Association of Southeast Asian Nations that China is a threat — that as it “rises” it is becoming an aggressive rogue nation that is bent on domination of the South China Sea.

It also unnecessarily brings back into play the issue of “freedom of navigation,” which concerns all sea-faring nations. It almost certainly will bolster the Philippines’ case against China at the International Tribunal for the Law of the Sea.

But this is all “theoretical” unless or until China actually tries to enforce these regulations against the claimants in their own claimed EEZs, or in what others claim are “high seas” — where no country can make a claim — at least to fisheries.

Vietnam and the Philippines say that China has been doing so already against their vessels. If this becomes widespread and commonplace, it will be, in the words of the U.S. State Department, “provocative and potentially dangerous.”

Another question has to do with internal Chinese politics. Is Hainan essentially forcing Beijing’s hand on a foreign policy matter — or is Beijing encouraging it to do so to deflect international pressure from the central government? China’s Ministry of Foreign Affairs has strongly defended Hainan’s legal initiative.

Whatever its murky origins, China is now facing a political dilemma of its own making. If it clarifies that the law applies to much of the South China Sea and tries to enforce it, China will have “crossed the Rubicon” vis-a-vis other claimants and users of the sea.

If China continues its ambiguity regarding the applicable area of the legislation as well as its maritime claims, other nations will ignore the regulations.

As a reaction, China’s domestic nationalists will claim that China appears to be a “paper tiger” incapable of enforcing its own law. Domestic pressure will build for it to do so.

This seems a no-win situation. To escape this conundrum, China could clarify that it claims only the disputed islands and their EEZs, and that boundaries in the South China Sea should be negotiated. Meanwhile, it should refrain from enforcing the rules beyond its own claimed EEZ and especially in other countries’ claimed EEZs. To do otherwise is to court conflict.

Mark J. Valencia is adjunct visiting scholar at the National Institute for South China Sea Studies, Haikou, China.