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Background Brief China: Hainan Province Authorities Escalate Fishing Disputes Carlyle A. Thayer January 9, 2014

[client name deleted] Media reports claim that the Hainan provincial government recently announced new rules that foreign ships transiting through China's South China Sea claims must get permission from the Chinese government. We request your assessment. Why is China doing this now and why have foreign governments been so quiet? ANSWER: Assuming that press reports are accurate, the decision by Hainan provincial authorities to require the registration and approval of all foreign vessels seeking to fish or survey in its two million square administrative zone is a major escalation of Chinas jurisdictional claims in the South China Sea. The Hainan province government regulation in effect claims jurisdictional sovereignty over waters within its nine-dash line claim to the South China Sea. The area claimed by the Hainan province authorities amounts to 57 per cent of the South China Sea by my estimate. China is within its legal rights to issue an administrative order covering its lawfully promulgated 200 nautical mile Exclusive Economic Zone around Hainan Island and the Paracel archipelago. But China is acting illegally beyond these limits. Chinese vessels that attempt to enforce this edict beyond their EEZ will be engaged in state piracy because these vessels will be in international waters. The new regulation 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 regulations impose major penalties of fines up to US $83,000 far higher from those imposed previously.. Hainan provinces actions are inexplicable after the Chinese central government reigned in Sansha City prefectural authorities two years ago when they issued a regulation that extended beyond their legal remit. This regulation would have permitted the boarding of foreign ships transiting in international waters. The central government later clarified that the regulation covered only areas where baselines and an EEZ had been declared.

2 The action by Hainan provincial authorities has the potential to heighten tensions and thus undermine if not torpedo scheduled talks between ASEAN and Chinese officials on a Code of Conduct within the framework of the working group to implement the Declaration on Conduct in the South China Sea. Further, the Hainan Island regulation sets Chinese officials on a collision course with Vietnam, the Philippines and Malaysia as their fishermen regularly ply the waters included in the regulation. Of course Hainan province authorities could be selective in the application of this regulation by targeting Filipino fishermen operating at sea within the area where Chinas nine-dash line overlaps with the Philippines EEZ. The Hainan province regulations fly in the face of understandings reached between China and Vietnam during the course of Premier Li Keqiangs visit last year. The two sides agreed on a hot line between their agricultural ministries to deal with fishing incidents. China hailed Lis visit as a breakthrough in relations because both sides agreed to set up three joint working groups to map out cooperation in maritime area, on shore and in monetary affairs. The Hainan province regulations cover such a wide area that it is unlikely that Chinese authorities can police everywhere. China has long incorporated legal warfare into its defence planning. The actions by Hainan province authorities is another example of China using domestic legislation and regulations to advance its territorial and jurisdictional claims. China will always use this purported legal basis to justify rough handling of foreign fishermen in disputed waters. In this case the disputed waters are international. The issuing of these regulations by Hainan government authorities will force foreign nations to respond to the legal basis for Chinese claims thus inadvertently playing into Chinese hands to recognizing the existence of its claim to the South China Sea. A key question is whether the most senior Chinese leaders, including President Xi Jinping, were aware of the impending regulations (adopted on 29 November, announced 3 December and came into force on January 1st) and approved them. Foreign governments probably have been slow to respond for three reasons. First, foreign states are likely to be seeking clarification from central authorities in Beijing. Media reports state that the Hainan province regulations were only distributed internally. Second, many foreign states, like the United States and Australia, do not take sides in territorial disputes. They support freedom of navigation but in this case none of their fishing vessels are likely to be involved. Third, foreign states would want to wait and gauge reaction from the states directly concerned before responding publicly.

Suggested citation: Carlyle A. Thayer, China: Hainan Province Authorities Escalate Fishing Disputes, Thayer Consultancy Background Brief, January 9, 2014. All background briefs are posted on Scribd.com (search for Thayer). To remove yourself from the mailing list type UNSUBSCRIBE in the Subject heading and hit the Reply key.

3 Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients. Thayer Consultancy was officially registered as a small business in Australia in 2002.