South China Sea and the Conundrum of China’s Annual Fishing Bans

[Janhavi Pande is a Researcher at the South East Asia Research Programme, Institute of Peace & Conflict Studies, India.]

INTRODUCTION

In May this year, China imposed its annual three-month fishing ban in the South China Sea (SCS). The ban, introduced in 1999, extends to all coastal states whose fishermen tread China’s claimed Exclusive Economic Zone, lying above the 12 degrees North parallel. Both Vietnam and the Philippines have protested the ban with the United States also having voiced its support of the Philippines government, pointing out that the ban was inconsistent with international law.

Like the SCS disputes themselves, the fishing ban is contrived in both, its law and politics – at once seeming innocuous in the light of China’s efforts to conserve and revive fish stocks, while simultaneously carrying with it, undertones of what is often referred to as China’s ‘greyzone warfare’ in the waters. This article aims to unpack the underlying complexities surrounding the fishing bans and the impact of the larger geopolitical and environmental factors on the responses of the disputing states.

COMPETING CLAIMS AND FISHERIES REGULATION IN THE SCS

The SCS maritime geography is an amalgamation of competing claims of sovereignty, historical memory, international economic activity and growing concerns around food security; set against a larger backdrop of great-power rivalry. Beijing has often resorted to historical references of ancient Chinese usage of the sea’s islands and of tributes paid to various Chinese dynasties in support of China’s attempts to assert control over a majority of the sea. Chinese scholars present, whether accurately or otherwise, a chronology of purported Chinese control of the waters, using early maps published by Chinese cartographers, as well as unilateral declarations and laws passed by the Chinese state before and after the establishment of the PRC. 

Vietnam, for its part, has long regarded parts of the sea to be its traditional fishing grounds. It has also been argued that the country is a rightful successor to some of the colonial holdings in the region, pursuant to the principle of uti possidetis juris. Like China, Vietnam also makes historical claims on parts of the SCS dating back to the 17th century. It claims the entirety of the Paracel and Spratly Islands, having articulated its position through a series of White Papers and its Law of the Sea adopted in 2012.

The Philippines remains the only country whose claims are compliant with the UNCLOS. It has, through a series of legislations, ensured that its baselines have been brought in conformity with the legal stipulations in the Convention. This includes areas such as the Scarborough shoal, which also double as its traditional fishing grounds and have been adjudicated as such by the Permanent Court of Arbitration. Increasing Chinese encroachment ensures that several Filipino fishermen can no longer access these areas.

The 2016 Arbitral Award between the Philippines and China negated the argument of any historical rights over the SCS waters accruing to the latter. The tribunal also invalidated China’s nine-dash line, holding it to be in contravention of the UNCLOS. However, a determination of the contentious claims of sovereignty remains outside its competence, leaving the larger issue at the mercy of increasingly difficult negotiations. Meanwhile, China, having opposed any judicial interference in the matter, rejected the award and has simply continued to effect de facto changes to the legal status of the disputed waters. This is done using a combination of regular and irregular naval patrols supported by increasingly draconian laws being imposed on anyone it regards as a ‘foreigner’.

There is no dearth of speculation over Beijing’s need to expand into the SCS and indeed, the reasons are too many to be within the scope of this article. But a key factor that also ultimately contributes to the intractability of the dispute is the wholesale depletion of fishing stocks in the near waters of the littoral states. Some claim that the SCS is, for all intents and purposes, a fisheries dispute, and it wouldn’t be too far-fetched an argument to make. Roughly 50% of the fishing stocks in the SCS have either collapsed or been over-exploited and fishermen have to typically go further out into the sea to source their catch. This has had a cascading effect on the intensity with which states have sought to assert their maritime claims. For China, fishing makes up about 3% of its GDP and is an important source of food security for its coastal communities.

The absence of a regional regulatory framework for the fisheries has left a vacuum allowing Beijing to create and enforce its own rules of engagement against other coastal states. The situation is only exacerbated by China’s expanding security needs, the need to maintain internal cohesion and its increasingly deteriorating ties with the United States and its allies in the region. It does not help that for a long time, none of the disputing parties to the SCS (with the exception of the Philippines) had initiated the process of bringing their claims in line with the UNCLOS. Moreover, the Code of Conduct for the SCS, a regional solution conceived as far back as 1996, has simply resulted in periodic declarations and guidelines eventually amounting to very little, although every other year, there are talks of reviving negotiations on it.

ASSESSING RESPONSES TO THE BAN

A study conducted in 2018 found that the number of fishing boats during the annual ban periods had reduced by about 72%. The same study also found, however, that the Vietnamese fishermen had continued to operate in the Chinese EEZ during those periods. Apart from raising questions on China’s ability to actually enforce the ban, this finding is indicative of the modest but consistent defiance with which some of China’s neighbours, Vietnam and Philippines in particular, have approached the problem. This is not to say the ban isn’t successful. Indeed, there have been reports aplenty of fisherfolk being harassed by the Chinese coast guard when they set out to fish. But there are limits to this success, given the political backlash China is liable to face in these countries.

With Vietnam, China continues to be seen as an occupier of the Paracel and the Spratly Islands having gained control of the Islands, through armed aggression in 1974 and 1988 respectively. This control has been consolidated through the establishment of permanent settlements (like the Sansha city) and other administrative measures that serve to demonstrate China’s sovereignty over the Islands. With the Philippines, the tentative political rapprochement with informal agreement on fishing rights, brokered under President Duterte, has evidently unravelled in the past couple of years.

Not surprisingly therefore, the annual fishing ban has been portrayed by both the states as a familiar attempt by China, to further its claims over the SCS by changing facts on ground and using ‘lawfare’ as a tool for attaining legitimacy. Vietnam’s official response to the fishing ban has been to challenge its very applicability to its citizens whilst encouraging them to continue fishing when the ban is in force and in China’s claimed EEZ.  The Philippines meanwhile has accused China of repeated ‘harassment’ and ‘disruption’ at sea. After nearly five years of putting the PCA ruling on the back-burner, the Philippines government has formally reiterated its findings, terming them “conclusive” and “indisputable.” It has also notably sought to revive defence ties with the United States. Indeed, only recently, the US Secretary of State Antony Blinken reaffirmed that an armed attack on the Philippines would “invoke the US mutual defense commitments”.

BETWEEN LAW, POLITICS AND CONSERVATION

To be fair to the Chinese position, the country has implemented extensive fishing bans both domestically and internationally, in non-contested waters and with considerable success. There is also some evidence to show that despite their imposition, such bans are not met with strict enforcement by the Chinese authorities in practice. Moreover, the region finds itself in an increasingly precarious position with massive destruction of fish stocks and few alternatives for their replenishment.

Under Art. 123 of the UNCLOS, coastal states are required to cooperate on matters pertaining to the protection of the marine environment and management of fish stocks. As per art. 192 of the same convention, states have an obligation “to protect and preserve the marine environment.” The operative requirement here is one of both individual and collective responsibility. And it is especially at the collective level that the parties have simply failed to arrive at a consensus on fisheries management. In the absence of tangible cooperation, China’s law looks like a convenient interim solution- one which, although questionable in motive, may nonetheless ensure long-term benefits to the marine environment.

But even the most optimistic view of the PRC’s conduct can scarcely afford to look past its own fishing practices including IUU fishing, land reclamation, clam extraction and hydrofracking- all of which remains unchecked and highly deleterious to the already limited resources in the region. Some argue that China’s policies reflect the intent to engage in some “self-interested fishing activities”, while simultaneously posing as the leader in global fisheries governance. Others term China’s behaviour in the SCS as being part of the larger idea of international ‘dark’ law whereby authoritarian states exploit grey areas in international law in order to “take actions that, in fact, run counter to the rule of law”. One could also posit, in giving China the benefit of doubt that its actions have something to do with the involvement of the US and other Western powers in the region. That still, however, offers no justification in international law for unilateral measures which have a bigger impact on its neighbours than the United States or its ‘Western’ allies.

CONCLUSION

In an increasingly multipolar world, consensus on international law will have to be built and sustained at the regional level. This is especially important in the areas such as the SCS where large communities depend on dwindling resources. China’s attempt to build such consensus appears to rest primarily on a unilateral imposition of the rules of engagement backed by sustained diplomatic efforts to elicit acquiescence to such overreach. Otherwise known as ‘salami slicing’ in diplomatic language, such conduct is essentially in bad faith and has larger security ramifications. More importantly, it poses serious risks of miscalculations that could have potentially disastrous consequences for lives and livelihoods in the region. It is necessary therefore, for all parties involved, to mutually agree to managing maritime resources even as they continue to negotiate (with little success) a Code of Conduct.