By Carl Thayer
The Hainan provincial government’s announcement last December that foreign ships transiting through waters within the nine-dash line area claimed by China must get permission from the relevant Chinese authorities is a major escalation of China’s claims in the South China Sea. The new fishing decree was passed late last November and came into force on January 1. It is another example of China’s use of domestic legislation and regulations to advance its territorial claims, a tactic that has long been incorporated into China’s defense planning.
According to the United Nations Convention on the Law of the Sea, China is within its legal rights to issue an administrative order covering its 200 nautical mile Exclusive Economic Zone (EEZ) around Hainan Island and the Paracels archipelago, which is disputed by China and Vietnam but controlled by China. Yet the newly issued decree went beyond these limits. In fact, it presumes jurisdictional sovereignty over waters within the controversial nine-dash line, with the area claimed by the Hainan government amounting to around 57 percent of the South China Sea. Chinese vessels that attempt to enforce this edict beyond China’s EEZ will be operating in international waters, effectively engaging in a form of “state piracy.”
The wide area covered in the new regulations makes it unlikely that Chinese authorities can police everywhere in those waters. But the decree provides legal justification for what Chinese authorities have been doing for several years: forcing foreign fishing vessels out of disputed waters, boarding and confiscating the fish catch and other valuable items (GPS, radio, tools), impounding foreign fishing boats, and fining their crews. The new rules impose penalties of up to $83,000, far higher than those imposed previously.
The Hainan government’s announcement of new fishing rules is puzzling. In the past, the central government has taken actions to reign in the prefectural authorities of Sansha City in Hainan province when they issued a regulation that would have permitted the boarding of foreign ships transiting in international waters. Beijing later clarified that the regulation covered only areas where baselines and an EEZ had been declared. It remains unclear whether the most senior Chinese leaders, including President Xi Jinping, were aware or approved of the new regulations.
This latest action has the potential to undermine scheduled talks between ASEAN and Chinese officials on a Code of Conduct in the South China Sea (held within the framework of a working group to implement the 2002 Declaration on Conduct of Parties in the South China Sea). Furthermore, it sets China on a collision course with Malaysia, the Philippines, and Vietnam, as fishermen from these countries regularly ply the waters included in the regulation. At the same time, the provincial authorities could be selective in enforcing the rules by, for example, targeting Filipino fishermen operating within the area where China’s nine-dash line overlaps with the Philippines’ EEZ as retribution to Manila for taking Beijing to a UN tribunal over its South China Sea claims.
The regulations also fly in the face of understandings reached between China and Vietnam last year during Premier Li Keqiang’s visit to Hanoi. The two countries agreed to establish a hot line between their agricultural ministries to deal with fishing incidents. Beijing even hailed the visit as a breakthrough in relations because both sides agreed to set up three joint working groups to map out areas of maritime cooperation.
Foreign governments have not responded well to the new fishing restrictions. Immediately after the rules were made public, the Philippine government said it was seeking clarification from China. On January 10, the Philippines and Vietnam both issued statements condemning the new directive, with Hanoi calling it “illegal and invalid.” Meanwhile, the U.S. State Department on January 9 called the new fishing rules “provocative and potentially dangerous.”
The latest move by the Hainan government is an indication that China will continue to use a purported “legal basis” to justify its rough-handling of foreign fishermen in the region’s disputed waters. The issuing of these regulations has the effect of forcing foreign governments to respond to the legal basis for Chinese claims, thus inadvertently playing into Chinese hands by having to recognize the existence of its claim to the South China Sea.
Dr. Carlyle A. Thayer is Emeritus Professor at the School of Humanities and Social Sciences, The University of New South Wales at the Australian Defence Force Academy in Canberra, Australia. Read more by Professor Thayer here.