China casts red tape in South China Sea
By Richard Javad Heydarian
MANILA - China forayed into 2014 by signaling its intent to consolidate contested territorial claims in the South China Sea. Authorities in the southern Chinese province of Hainan introduced an amended maritime regulation that requires foreign fishing-related vessels to secure the permission of local authorities before entering China's claimed maritime jurisdiction.
The new regulation was passed by Hainan's People's Congress in November and came into effect on January 1. According to the state-owned China News Service, foreign vessels could be apprehended and face up to 500,000 yuan (US$91,800) in fines if they fail to secure entry permission from the relevant and
responsible government department before entering areas of the South China Sea.
As translated by Professor Taylor Fravel of the Massachusetts Institute of Technology, Article 35 of Hainan's new fishing regulation states: "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 new measure is the second amendment to a 1993 provincial Fishery Law and is in line with a 2004 national maritime law that is designed to enforce the country's jurisdiction over adjacent waters. Anticipating the potential diplomatic fallout of the new measure, Chinese authorities have tried to downplay the impact of the regulation by emphasizing its primary role as a clarification of pre-existing maritime legislation.
"[China] has the right and responsibility to regulate the relevant islands and reefs as well as non-biological resources," Foreign Ministry spokeswoman Hua Chunying stated, justifying the legality of the new measure. "For more than 30 years, China's relevant fisheries laws and regulations have been consistently implemented in a normal way and have never caused any tension."
Hua went on to portray the new measure as an environmental regulation to ensure the conservation and sustainability of maritime resources in the South China Sea: "The goal is to strengthen the security of fisheries resources and to openly and reasonably utilize and protect fisheries resources."
Critics claim that the new regulation provides quasi-legal cover for China's bid to enforce its sweeping claims across a huge swath of contested waters. Based on Hainan Department of Ocean and Fisheries documents released in 2011, the provincial authorities claim jurisdiction over more than half of the South China Sea, or 2 million square kilometers out of a total of nearly 3.5 million square km.
Shortly after the new regulation came into effect, Vietnamese media outlets reported the confiscation on January 3 of a Vietnamese fishing vessel by Chinese law enforcement authorities. The Vietnamese government, which has been negotiating a "joint development" scheme with China in the contested Paracel Islands, remained silent on the issue. Neighboring countries such as the Philippines and Taiwan, as well as the United States, however, criticized China for allegedly stoking tensions through the new legal measure.
Philippine authorities, at least initially, were more calculated in their response. Raul Hernandez, spokesman for the country's Department of Foreign Affairs (DFA), politely expressed Manila's displeasure at not being properly informed about the implementation of the new regulation and subsequently sought further "clarification" from Chinese authorities through its embassy in Beijing.
The DFA's initially cautious response marked a notable departure from its more explicit criticism of similar Chinese measures in the past. In recent months, President Benigno Aquino's administration has sought to re-open communication channels with China by toning down its rhetoric and emphasizing common areas of interest and the importance of dialogue.
The tactical decision made in late-2013 to revise Manila's strategy towards Beijing has been evident in Aquino's repeated calls for direct talks with the Chinese leadership, his cautious endorsement of China's decision to once again negotiate a binding code of conduct in the South China Sea, and his decision to explicitly contradict his own cabinet members by rejecting reports that China allegedly began to place concrete blocks at the hotly-contested Scarborough Shoal.
With Washington's backing on the issue, the Philippines has since stepped up its rhetoric, with Hernandez later referring to the new regulation as a "gross violation of international law" that "escalates tensions, unnecessarily complicates the situation in the South China Sea and threatens the peace and stability of the region".
Manila's statement echoed Washington's criticism of the new measure. "China has not offered any explanation or basis under international law for these extensive maritime claims," State Department spokeswoman Jen Psaki stated, underscoring Washington's continued commitment to freedom of navigation in international waters. "Our long-standing position has been that all concerned parties should avoid any unilateral action that raises tensions and undermines the prospects for a diplomatic or other peaceful resolution of differences."
Some analysts have played down the geopolitical implications of the new measure by emphasizing the variability and arbitrary nature of its implementation. "I think Hainan put it out to tell relevant countries we have such a regulation, but how we practice it depends on how bilateral relations are," Shi Yinhong, professor of international relations at Renmin University in Beijing, told Reuters. "If ties are good, the regulation may be loose. If not, we will practice it strictly, which means that you have to get approval from us [Chinese authorities] before entering."
China's new maritime regulation comes against the backdrop of rising territorial tensions, fueled in large part by Beijing's late-November decision to impose an air defense identification zone (ADIZ) in the East China Sea, which covers territories claimed by both South Korea (leodo/Suyan rock) and Japan (Senkaku/Diaoyu islands). Washington and its allies swiftly challenged the new measure by conducting military exercises in the area while prodding China against interrupting the freedom of flight in the region.
This was followed by Japan's vigorous efforts to rally regional support against China. In an indirect criticism of China's ADIZ, Tokyo and the 10-member Association of Southeast Asian Nations (ASEAN) expressed their common concern over "freedom of over-flight and civil aviation safety" during the ASEAN-Japan Summit in mid-December.
For Southeast Asian states such as the Philippines and Vietnam, the bigger concern was and is China's possible imposition of an ADIZ in the South China Sea. Against this backdrop, the latest maritime regulation in Hainan may be viewed as a fallback option for China - in the tentative absence of an ADIZ for the area - to embolden its territorial claims across the Western Pacific and respond to US-led efforts to contain its regional influence.
China's latest maritime regulation does not immediately portend a dramatic escalation in the South China Sea, given the uncertainties over the actual nature and intensity of its enforcement. But it serves as a symbolic gesture of China's continued efforts to flex its military might in the region, regardless of the potential diplomatic and strategic fallout.
Richard Javad Heydarian is a Manila-based foreign affairs analyst focusing on the South China Sea and international security issues. He is a lecturer at Ateneo De Manila University's Department of Political Science, and the author of the upcoming book How Capitalism Failed the Arab World: The Economic Roots and the Precarious Future of the Middle East Uprisings. He can be reached at firstname.lastname@example.org.
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