Category: South China Sea

U.S. Policy in the South China Sea

I recently published a short policy brief for the S. Rajaratnam School of International Studies at Singapore’s Nanyang Technological University that examines the evolution of U.S. policy toward the disputes in the South China Sea since 1995.

Here’s the executive summary:

U.S. policy toward the disputes in the South China Sea has four features. First, the United States has altered its policy in response to changes in the level of tensions in the dispute. Second, U.S. policy toward the South China Sea has been premised on the principle of maintaining neutrality regarding the conflicting claims to sovereignty. Third, as its involvement in managing tensions has increased, the United States has emphasised the process and principles by which claims should be pursued more than the final outcome or resolution of the underlying disputes, especially conflict management through the conclusion of a binding code of conduct between ASEAN and China. Fourth, U.S. policy in the South China Sea has sought to shape China’s behaviour in the South China Sea by highlighting the costs of coercion and the pursuit of claims that are inconsistent with customary international law. Looking forward, the involvement of the United States in seeking to manage tensions in the South China Sea is likely to continue so long as the territorial and maritime jurisdictional disputes remain unresolved and states take declaratory steps and operational actions to assert and defend their claims.

Read the full report here.

 

Hainan’s New Fishing Rules: A Preliminary Analysis

Hainan’s provincial government has become an increasingly prominent and active player in the South China Sea disputes.  In November 2012, Hainan’s People’s Congress issued new regulations on coastal border security that raised questions about freedom for navigation in the South China Sea (see analysis hereand here).

In November 2013, the same legislative body issued “measures” (banfa, 办法) or rules for the province’s implementation of China’s 2004 fisheries law.  These new rules, which took effect on January 1, raise questions about China’s efforts to exercise jurisdiction over all fishing activities in the disputed South China Sea.

Current concerns focus on Article 35 of Hainan’s new fishing rules. This article states 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.” As the news reportannouncing the new rules indicated, the “sea areas administered by Hainan” constitute 2,000,000 square kilometers, more than half of the South China Sea. If implemented, the measures would constitute an effort to control fishing in the entire region in a manner that is clearly inconsistent with the UN Convention on the Law of the Sea (UNCLOS).

In assessing the potential implications of these measures for the disputes in the South China Sea, several points bear consideration.  All told, the new measures reflect part of a continuing effort to affirm and reaffirm China’s claims in the South China Sea, but are unlikely in the short to medium term to result in a sustained Chinese effort to control fishing in these vast waters.

To start, the new measures do not contain any new language regarding foreign fishing vessels in waters that China claims. In fact, the Hainan rules simply repeat almost verbatim Section Two, Article 8 of China’s 2004 fisheries law, which states that foreign fishing vessels operating in sea areas administered by China should receive approval from relevant State Council departments. That is, the new Hainan rules affirmed the application of the 2004 national law to Hainan’s waters (which were already covered by the 2004 law).  Importantly, the recent Hainan rules do not outline or articulate a new policy position regarding foreign fishing vessels in Chinese claimed waters.

In addition, the 2013 rules do not mark the first time that Hainan has sought to regulate the activities of foreign fishing vessels in its waters.  In previous editions of the implementing measures issued for China’s national fisheries law in 1993 and 1998, Hainan’s legislature also required that foreign fishing vessels receive permission to operate in the province’s waters.

Likewise, apart from Article 35, the other forty articles in the newly issued rules discuss rather mundane fishing issues and not the policing of Hainan’s waters. Various topics include fish-farming, fishing methods, the protection of fish stocks and so forth. One rule, for example, sets the minimum length for the catch of various species (e.g., 18 centimeters for lobsters). In other words, the main purpose of the implementing measures appears to be strengthening the regulation of fishing for an island province with a large fishing industry, not further bolstering China’s claims to fishing rights in the South China Sea.

Finally, the 2013 Hainan implementing measures do not state how the province intends to regulate the presence of foreign fishing vessels. Apart from stating that foreign fishing vessels must receive State Council approval to operate in Hainan’s waters, the measures do not discuss how the province will police foreign fishing vessels, including which agencies would be responsible for this mission or what rules of engagement would be used. The sheer size of the waters nominally under Hainan’s administration indicates that actual implementation of these new rules would be a daunting operational task, especially giving the various missions assigned to the newly-formed Chinese Coast Guard.

Any effort to implement these rules would also have to be balanced against China’s relations with other states adjacent to the South China Sea. In 2009, China aggressively policed foreign fishing vessels around the Paracel Islands, which are also claimed by Vietnam. In particular, China seized or detained 33 Vietnamese fishing boats with 433 Vietnamese fishermen. China’s assertive actions worsened ties with Vietnam, which subsequently improved after 2011. Clashes between the Chinese authorities and Vietnamese fishing vessels have declined significantly (though some still occur) and the two sides have established a hotline to deal with fisheries issues.

Looking forward, the reference to foreign fishing vessels in Hainan’s new fishing rules reflects a continued desire to affirm Chinese claims in the South China Sea and to do so in a way that is inconsistent with UNCLOS. Nevertheless, the key question is whether China is able – or even willing – to implement the new rules actively and aggressively throughout these waters.

[This originally appeared in The Diplomat.]

Xi Jinping and China’s Maritime Disputes

At the end of July, the Chinese Communist Party’s ruling Politburo held a special study session on the nation’s growing maritime power, which has helped cause controversy with several neighboring states. Official media reports about the meeting emphasized a speech by President Xi Jinping that repeated the main policy themes from the recent 18th Party Congress, calling for China to become a major maritime power by developing its maritime resources and protecting the ocean environment.

But Xi’s most interesting remarks have received scant attention. Under China’s system of collective leadership, speeches at Politburo meetings usually reflect the consensus of the participants – in this case, China’s top 25 leaders. Near the end of his address at the most recent study session, Xi discussed China’s ongoing maritime disputes and predictably repeated many now common talking points, such as “never giving up its legitimate rights and interests,” especially the nation’s core interests. Nevertheless, two other phrases he used may illuminate how Beijing may handle these disputes and therefore deserve greater attention. Xi’s remarks suggest that Beijing may be reconsidering the merits of its most assertive actions in the East and South China Seas—ones that have caused grave diplomatic problems with Japan and many Southeast Asian countries.

First, Xi repeated the late Deng Xiaoping’s 12-character guideline for dealing with territorial disputes over offshore islands such as the Spratlys and Senkaku/Diaoyu. In a series of statements between 1979 and 1984, Deng had outlined his more moderate approach, later summarized as “sovereignty remains ours; shelve disputes; pursue joint development.” In recent years, Chinese scholars and analysts have debated the merits of that approach, sometimes criticized for failing to prevent what have been perceived infringements of Chinese sovereignty. For example, just last year a prominent analyst at the China Contemporary Institutes of International Relations, Chen Xiangyang, called for a more assertive policy. In particular, he suggested that Deng’s guideline be replaced with a tougher approach: “sovereignty of course is ours; maintain the dispute stage; seize the initiative to pursue development; strengthen crisis management and control” (zhuquan dangran zaiwo, jieduanxing baochi zhengyi, zhuajin zizhu kaifa, qianghua weiji guangkong).

However, by repeating Deng’s 12-character guideline, Xi endorsed and affirmed Deng’s earlier position on behalf of the entire Politburo (including two of the People’s Liberation Army’s top generals, Fan Changlong and Xu Qiliang). By stating what the party line should be, Xi indirectly addressed the internal debate about Deng’s guideline. Of course, Deng did not offer a plan for resolving the underlying sovereignty disputes, but the Politburo’s affirmation of Deng’s approach indicates that Beijing will be patient, and pursue temporary measures to reduce tensions. It also undermines a growing belief overseas that China is becoming increasingly impatient at sea.

A few days later, Foreign Minister Wang Yi illustrated what Xi’s remarks could mean in reality. During a tour of Southeast Asia, Wang indicated that a final resolution could only be achieved through bilateral talks and would “take time,” while progress on a much-needed Code of Conduct for minimizing maritime problems could only be achieved without outside interference (read: the Philippine decision to seek international arbitration rather than direct diplomatic talks). Thus, Wang emphasized “actively” exploring joint development, though he failed to offer any specific details about how to do so.

Second, Xi said in his speech that China must “plan as a whole the two overall situations of maintaining stability and safeguarding rights” (yao tongchou weiwen  he weiyuan liangge daju), the first time such a phrase has been used by a top leader. This seemed to give equal importance to maintaining regional stability (weiwen) and safeguarding China’s “maritime rights and interests” (weiquan).

In past speeches by China’s top leaders, a reference to the “overall situation” (daju) typically described a primary national interest that Beijing should not allow to be harmed or undermined by specific state policies. In the 1990s, for example, speeches on military modernization asserted that increases in defense spending must be coordinated with the overall progress of economic reform – that is, spending should not increase at the expense of broader goals. More recently, in 2006, during a major speech on Chinese diplomacy, then-President Hu Jintao referred to the equal importance of managing the domestic and international overall situations (guonei, guowai, liangge daju). As Bonnie Glaser from the Center for International and Strategic Studies observed then, Hu’s statement reflected the judgment that Beijing’s domestic policy of urging enterprises to invest abroad had backfired by harming China’s image in the world.

In his speech to the Politburo, Xi thus highlighted the contradiction between China’s enhanced efforts to defend its claimed maritime rights and its desire for regional  stability. This matters for several reasons. First, it represents a recognition that Beijing’s maritime assertiveness has harmed its other interests, especially the role of other states in regional security affairs. Since 2010, for example, the United States has clarified its policy in the South China Sea, while deepening its alliance with Japan and underscoring its commitment to defend the disputed Senkaku/Diaoyu islands (which Japan administers) under Article V of their mutual defense treaty. Tokyo meanwhile has pursued greater maritime and security cooperation with Hanoi and Manila, among others, including by providing patrol boats.

Second, the stress on the need to balance these competing interests suggests limits to how either will be pursued going forward. On the one hand, China will not rule out reacting to perceived challenges simply to maintain regional stability. On the other hand, China’s defense of its maritime claims will also face hard constraints, lest they further worsen its position in the region. How these interests will be balanced may become apparent as a newly formed Chinese Coast Guard under a reorganized State Oceanic Administration shows how it plans to behave.

In sum, Xi’s remarks to the Politburo deserve special attention. They indicate China may not be as impatient about resolving the South China Sea disputes as some analysts have suggested. And they indicate China’s approach to these disputes may be more nuanced than expected by those who have labeled him as little more than a nationalist hardliner.

[This originally appeared in The Diplomat as “Xi Jinping’s Overlooked Revelation on China’s Maritime Disputes.”]