Why all the fuss about 'new' Hainan fishing law

The Chinese province has long had a rule that foreign vessels must get its permission to fish in waters under its jurisdiction. But if, when and where it will enforce this is another matter.

ON JAN 1 this year, China's Hainan province implemented China's 2004 fisheries law in waters under its administration. In response, the Philippines, Vietnam, the United States, Japan and even Taiwan have protested.

So, what exactly is all the fuss about?

China's Foreign Ministry spokesman Hua Chunying said the regulations were "according to international law", adding: "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."

The problem is that the law - first promulgated in 1986 and revised and implemented by Hainan in 1993, and again in 1998 - contains a provision stipulating 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".

Another provision warns that a foreign fishing vessel "that enters these waters without permission will be expelled and have its catch confiscated, and be fined up to 500,000 yuan (S$105,000)".

It is true that these provisions are not new. But what is new is the expansion of Hainan province to include Sansha prefecture, which was established in July 24, 2012. Sansha prefecture includes the Paracel and Spratly islands. Moreover, China has formally claimed these islands and their "adjacent waters".

So, this thread of claims leads us back to the question of what China claims in the South China Sea, and why.

Its infamous nine-dashed line encompassing most of the 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" - the 12 nautical miles of territorial seas extending from land, or the 200 nautical miles allowed for an exclusive economic zone, or something else?

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.

Rival claimants to parts of the South China Sea - Brunei, Indonesia, Malaysia, the Philippines, Taiwan and Vietnam - and user states fear the worst: That is, the most expansive claim.

And in the absence of clarification, who can blame them?

The original 1986 fisheries law of Hainan applies to "inland waters, tidal flats, territorial waters and exclusive economic zones of the People's Republic of China and all other sea areas under the jurisdiction of the People's Republic of China".

Xinhua, China's state news agency, reported in conjunction with the "revised" rules that they apply to 2 million sq km (of the

3.5 million sq km) of the South China Sea.

China responded to the Philippines' request for clarification that the regulations are "an implementation of China's fisheries law and cover the jurisdiction of Hainan province" - a statement that does not add clarity to the situation.

The critical questions now are if, when and where the revised rules will be enforced.

One knowledgeable commentator speculated that enforcement would be selective depending on the warmth or coolness of the flag-state's bilateral relations with China.

Another, legal affairs director Lin Yuan of 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 be new or may not articulate new policy regarding foreign vessels in China's claimed waters.

But they do beg the questions of "why now", and given the growing tension in the region, "why has China via Hainan made an in-your-face reaffirmation of such a highly controversial provision without clarifying the extent of its application"?

Doing so plays right into the United States' attempt to convince Asean 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 refocuses attention on the issue of "freedom of navigation", which concerns all sea-faring nations. And 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 exclusive economic zones (EEZs), or in what others claim are "high seas" - where no country can make a claim - at least to fisheries.

However, Vietnam and the Philippines say that China has been enforcing some of these claims already against their vessels. If this becomes widespread and common place, it will indeed be - in the words of the US 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 Hainan to proceed to bolster China's claim while deflecting international pressure from the central government? China's Ministry of Foreign Affairs has strongly defended Hainan's legal initiative.

Whatever its murky motives may be - including simply enhancing fisheries management in its "area of responsibility" - 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, it 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 territorial waters and 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.

The writer is adjunct visiting scholar at the National Institute for South China Sea Studies at Haikou, China.