China wants Vietnamese, Filipino and other foreign fishing boats to get permission to fish in a wide swath of the South China Sea, under rules issued by Hainan island provincial government authorities.
The development, first reported outside of China by Bill Gertz at the Washington Free Beacon, marks yet another escalation in the tensions in the South China Sea, a 1.5 million square mile area where China has contested the ownership of islets and fishing areas controlled by Vietnam and the Philippines. The South China Sea is also where a Chinese Navy ship nearly collided with the USS Cowpens which was surveilling China’s new aircraft carrier the Liaoning on December 5.
Chinese law states that any ships that violate the fishing regulations will be forced out of the zone, have their catch confiscated, and face fines of up to $82,600. In some cases, fishing boats could be confiscated and their crew prosecuted under Chinese law.
Gertz makes an important observation about how the rules may be treated by the Chinese.
Beijing will likely deflect criticism of the no-fishing zone by claiming it was initiated by a regional government and thus is not part of national policy.
And this seems to be part of the “who’s-on-first?” strategy/trend of China multi-layered authority sending conflicting signals, which are difficult to address if there is no one signal authority in control. This strategy/trend allows China to test their neighbors and rivals. In part reflecting the dense layer of criss-cross and conflicting authority within China (which speaks to China’s internal challenge), China essentially allows various departments to create their own policy in dealing with international affairs – with one caveat: that whoever acts ensures China appears strong to the world.
In the past, China has claimed nearly the whole of the South China Sea as its own territory. As a former US State Department officer John Tkacik observed, the new rules appear to carry that earlier claim to a new level.
“Beijing is now stepping beyond its previous vagueness on the legal status of the ‘Nine Dash Line’ to promulgating a ‘provincial measure’ to see what the push-back is,” he said.
The fishing rules may also be a classic case of what’s known as “lawfare”, or the ‘use of legalized international institutions to achieve strategic ends.’
In other words, China can legally wrest control of a territory by showing that it administers them. In time, as other powers recognize China’s administration, China’s legal claim grows. This is why it’s important the US government doesn’t recognize China’s unilaterally announced Air Defense Identification Zone over the East China Sea, but it’s equally significant that US airlines do recognize it, even if for safety reasons only. (Japanese airlines don’t recognize it).
As Zachary Keck, writing in the Diplomat notes, the bright side to this use of lawfare is that China recognizes the validity of international law.
…if Chinese leaders are seeking to bolster their sovereignty claims under current international law, they evidently don’t intend to radically upend the current international order, or at least are uncertain about their ability to do so even over the long-term.
But lawfare may be too nuanced description for what’s happening. This may just be coercion, occurring across military, political, rhetorical, diplomatic and legal channels. And if it serves China’s interests, I don’t imagine China reaching a certain point of lawfare and deciding, “Oh, yes, that’s just about right. We’ll stop here.” A rising power usually tests the upper limits of its power as its emerges.