The South China Sea Hai-handed

TO THOSE who see China as an increasingly assertive, even expansionist, power, it offers yet more proof of its determination to establish authority even over fiercely disputed land and water. On January 1st new fishing regulations from the government of Hainan, China’s southernmost province, came into effect. They require all vessels planning to fish in waters in the South China Sea that are under Hainan’s jurisdiction first to secure the approval of the relevant Chinese authorities. Since China’s claims in the South China Sea are contentious, the rules seem very likely to provoke. That is probably not in fact China’s intention, but its neighbours do have cause to worry.

The Philippines and Vietnam, the littoral countries with the most active territorial disputes with China, were quick to condemn the regulations. America called the rules “provocative and potentially dangerous”. Japan’s defence minister, Itsunori Onodera, made explicit the link many had seen with China’s unexpected announcement in November of an Air-Defence Identification Zone (ADIZ) over parts of the East China Sea, including the Senkaku/Diaoyu islands administered by Japan. He expressed concern that China was “unilaterally threatening the existing international order”.

Predictably China rejected all this as malicious misrepresentation. The regulations, it argued, contained nothing new. It presented them as part of a slow but methodical process of legislative house-cleaning. It said the contentious requirement to seek approval was contained in a national fisheries law passed in 1986, first adopted into Hainan’s provincial legislation in 1993.

Taylor Fravel, an expert on the South China Sea dispute at the Massachusetts Institute of Technology, has written in The Diplomat, an online newspaper,  that the main purpose of the rules does indeed appear “to be strengthening the regulation of fishing for an island province with a large fishing industry”, rather than bolstering China’s claims to sovereignty. He points out that, besides the clause that has caused the furore, the rules also cover issues such as the protection of fish stocks, even setting the minimum length at which it is permissible to catch various species (at least 18 centimetres for a lobster, for example).

However, China can hardly complain about foreign criticism of its creeping extension of the legislation that covers its claim to the South China Sea, when it remains both so vague and so intransigent about the claim itself. An unexplained “nine-dashed line” that China uses as a map gives it sovereignty over virtually the entire sea (or perhaps just over the bits of land scattered across the sea and their adjacent waters). Separately, China says that Hainan has jurisdiction over a smaller area, 2m square kilometres of the sea (out of a total of about 3.5m).

Taiwan also claims territory within the nine-dashed line. Brunei, Malaysia, the Philippines and Vietnam challenge China’s sovereignty over different islands. With so many cross-cutting disputes, it is understandable that even what is presented as a technical, legal issue raises hackles. And it is of course seen as part of a more general assertiveness, notably around the islands in the East China Sea, but also in the South China Sea. Vietnam says that last year it detected 516 incursions by Chinese fishing boats into what it sees as its waters, an increase of 223 over 2012. In December an American guided-missile cruiser narrowly avoided colliding with a Chinese naval vessel in the sea.

The rules also raise questions about China’s adherence to its international obligations. In 2002 it agreed with the Association of South-East Asian Nations on a “declaration” about a code of conduct to avoid conflict in the South China Sea. It has since stalled over negotiating an actual code. But even under the declaration, countries are supposed “to exercise self-restraint in the conduct of activities that would complicate or escalate disputes”.  The rules, like one Hainan announced in 2012 giving its public-security officials the right to board foreign ships that are in its waters illegally—and to expel or detain those on them—seem a clear breach, at least of the spirit of the declaration.

They also clearly flout the principles of the United Nations Convention on the Law of the Sea (UNCLOS). The nine-dashed line and Hainan’s 2m-square-kilometre claim cannot be explained under UNCLOS, which gives countries territorial waters and exclusive economic zones based on their coastlines and the islands they own. Much of the area covered by the new rules are in what the rest of the world regards as international waters—in a sea that threatens to become increasingly turbulent.