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Vietnam Today

Counter moves

Released at: 08:12, 20/03/2014

Counter moves

Emeritus Professor Carl Thayer from the School of Humanities and Social Sciences, University of New South Wales at the Australian Defence Force Academy, spoke with VET's Ha Nguyen about recent regulations from China's Hainan province on permitted fishing in the East Sea

by Ha Nguyen

In your view, what are China’s intentions in announcing this regulation?

The new regulations were apparently a decision of the Hainan province legislature and not the central government. A Chinese Foreign Ministry source defended the action of the Hainan province legislature by claiming the new regulations are the same at the national Fisheries Law. While it is not possible to know why the legislature made this decision last November - perhaps it was a product of their work plan - it is clear the decision was ill-timed, coming within a week of the decision by China’s Ministry of National Defence to declare an Air Defence Identification Zone (ADIZ) over the East China Sea.

Do you think other ASEAN members with a direct interest in the East Sea will comply with the regulation?

The Hainan province regulations apply to three distinct maritime zones: (i) China’s legitimate Exclusive Economic Zone (EEZ) around Hainan Island; (ii) the disputed waters around the Paracels; and (iii) international waters. The Philippines and Vietnam and possibly Malaysia are the three countries most likely to be affected. Depending on the areas covered Indonesia could also be involved. No ASEAN maritime state will comply if China attempts to board and seize their fishing vessels in international waters. This would be akin to “state piracy” and would result in a legal challenge that China would lose. ASEAN members will remain silent on Chinese enforcement of its regulations in areas where China’s nine-dash line claim overlaps the EEZs of the Philippines and Vietnam. ASEAN members will view this as a bilateral matter. The same pertains to waters around the Paracel Islands. They are administered by China and some ASEAN states will remain silent so as not to offend China. As with disputed waters in the EEZ most ASEAN states will view this as a bilateral matter between Vietnam and China.

How does the regulation affect the status quo?

It is clear that the attempted enforcement of China’s regulations in international waters will bring a swift negative response from all outside regional maritime powers. They will want to uphold freedom of navigation. Hainan province over-extended its authority by issuing these regulations. The actions by Hainan province violate the 2002 Declaration on Conduct (DoC) of Parties. They also threaten the success of ASEAN-China consultations on a Code of Conduct (CoC) set to resume in April this year.

Under international law regarding disputed maritime jurisdictions, China is obliged to not upset the status quo by undertaking unilateral actions. China is also obligated to cooperate and not use force or the threat of force until sovereignty disputes are resolved. China has not and will not meet its international obligations in this respect.

What do you think the response from the US, ASEAN and other Asia-Pacific countries will be?

The Philippines and the US have made their protests public. Vietnam has also made an official diplomatic protest. Most ASEAN countries and other outside powers are seeking clarification from China’s Ministry of Foreign Affairs. It should be recalled that Sansha City prefecture officials overstepped the mark by threatening to board foreign ships in its administrative maritime zone. China’s central authorities intervened to clarify that only Chinese territorial waters and EEZs were affected.

The Philippines has been the most vocal on the issue. In a statement issued on January 10 its Department of Foreign Affairs stated that the new regulations “escalates tensions, unnecessarily complicates the situation in the East Sea and threatens the peace and stability of the region.” China cannot hope to enforce Hainan province’s new regulations over 2 million square kilometres. There is the threat that China might apply these regulations selectively against the Philippines to put more pressure on it to abandon its claims to the UN Arbitral Tribunal.

The US Department of State declared “the passing of these restrictions on other countries’ fishing activities in disputed portions of the East Sea is a provocative and potentially dangerous act.” This is a correct assessment.

In your opinion what should Vietnam and ASEAN members do now?

Vietnam must lodge an official diplomatic protest. The Vietnamese Ambassador in Beijing should make clear that any attempt to enforce the Hainan province regulations outside of Hainan’s EEZ runs counter to the spirit of cooperation reached between Presidents Truong Tan Sang and Xi Jinping and between Prime Minister Nguyen Tan Dung and Premier Le Keqiang. Vietnam should attempt to work out a modus vivendi with China about waters around the Paracels to prevent fishing incidents from negatively affecting bilateral relations.

Vietnam should have its ambassadors brief each ASEAN country, and Myanmar as ASEAN Chair, about the present situation and any subsequent development. Vietnam must try and lobby ASEAN members to view this as an issue that affects the security of all its members. The ASEAN Secretary General should be instructed to raise ASEAN concerns with China and ask China how to reconcile its commitment to consultations on a CoC with the unilateral action by Hainan province authorities.

Some recommend that Vietnam take China to the world court. Do you think this is necessary?

Chinese Foreign Minister Wang Yi lobbied Vietnam hard during his visit last year not to join the Philippines in its claim to the Arbitral Tribunal. Vietnam correctly declined and argued if Vietnam’s national interests are affected by the Arbitral Tribunal then Vietnam reserves the right to join the process to protect its national interests. This was a wise response. It buys Vietnam time to observe and decide what to do later. It also prevents Vietnam from being put in a corner by China. Vietnam should wait until after March when the Philippines is required to submit its memorial (its response to issues raised by the Arbitral Tribunal). Vietnam should closely monitor the response by the Arbitral Tribunal and only intervene if its interests are negatively affected.

“China’s intentions are to make explicit what it has long held to be its rightful area of control. While it is difficult to suggest why now as opposed to some other time, one might make the case that it goes hand-in-hand with other Chinese proclamations in recent times (for e.g. the ADIZ). As China’s confidence and defence capabilities continue to grow, countries in the region will be watching closely to see if other similar developments take place, which might further suggest a pattern of behaviour.

I think the responses from the US, ASEAN and other Asia-Pacific countries regarding this regulation are not surprising. Relations between China and Vietnam and between China and the Philippines regarding the East Sea have already been contentious. Such an announcement gives both of these countries (who are both claimants of the islands in the region) more reason to believe that China is attempting to take control of the area. The US condemnation of the move as “provocative and potentially dangerous” is also understandable given its relationships with countries in the region (for e.g. the Philippines), as well as its own interests regarding free navigation of the seas in the area (and recent run-ins between US and Chinese vessels). For its part, I think Vietnam should continue to work towards a peaceful solution to the problems, calling for efforts to work together both bilaterally and through ASEAN-created multilateral capabilities.”

Mr Mike Kulma
Executive Director, Global Leadership Initiatives at Asia Society, New York

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