Thayer Consultancy

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Background Briefing: South China Sea: Fishing in Troubled Waters Carlyle A. Thayer May 18, 2013

[client name deleted] We are writing a report on how civilians, especially fishermen, are increasingly getting caught in the forefront of the territorial disputes in and around the South China Sea. Fishermen seem to have emerged as a major factor that could spark an accidental armed skirmish or diplomatic crisis in contested waters. The region has no effective and accepted conflict-resolution mechanism so any maritime incident, is at best, left to chance of being peacefully resolved. Proposed negotiations for a regional Code of Conduct between ASEAN and China have effectively stalled. We request your assessment of the following issues: Q1. With the increasing skirmishes in and around the South China Sea, including the recent shooting to death of a Taiwanese fisherman by the Philippine Coast Guard in disputed waters and China's de facto seizure of the Scarborough Shoal and its constant chasing away of Filipino fishermen from that disputed area, what is/are the most urgent step/s the involved parties and affected countries can take? ANSWER: Vietnams Minister for National Defence, General Phung Quang Thanh tabled a number of proposals to the ASEAN Defence Ministers Meeting (ADMM) including: boosting cooperation among ASEAN navies, establishing hot lines between naval commands, conducting joint patrols at sea, and promoting the exchange of defence personnel stationed in the Spratly Islands. He also suggested that ASEAN nations draft and sign an agreement on the prevention on the first use of force in disputes over maritime zones and islands between those countries that had garrisons in the South China Sea. He also proposed the humane treatment of fishermen caught fishing in another nations maritime zone. ASEAN should press the issue of peacefully handling the case of fishermen caught in another nations maritime zone with China, under the DOC, and as a pressing matter. ASEAN and its littoral claimant states should draw up a common Standard Procedures to guide their coast guards in handling incidents. In addition, ASEAN and China should reach agreement about promptly investigating incidents, especially those involving deadly force. These investigations should be transparent and publicly reported.

2 The case of Scarborough Shoal is a bilateral dispute between the Philippines and China. China has repeatedly expressed its determination to maintain a permanent presence. The Philippines should keep diplomatic channels of communication with Chian open; but this is unlikely to achieve any resolution. The Philippines could attempt to raise the matter in multilateral regional forums like the ASEAN Regional Forum, ASEAN Defence Ministers Meeting (ADMM) Plus and East Asia Summit. The purpose would be to enlist the support of the international community. All of these measures are necessary to keep the issue before world opinion but they are not sufficient to get the Chinese to budge. It is strongly rumoured that the United States played a role as intermediary during discussions between China and the Philippines on mutually withdrawing from Scarborough Shoal. The Chinese reneged on this agreement and returned and annexed the Shoal. There is no easy solution to this problem. The Philippines could take a leaf out of Chinas book and attempt to mobilize fishermen and peace activists to non-violently confront the Chinese at Scarborough Shoal. The Philippines could deploy Coast Guard and other vessels to provide support. This action would attract world attention. The Philippines could open a second front when China is engaged over the Senkakus. But this approach is likely to escalate tensions rather than force China to back down. Q2. Without any conflict-resolution mechanism in place in the region and without any emerging resolution in sight over the web of territorial disputes in and around the South China Sea, who can be an effective peacemaker when ASEAN seems to have been incapacitated by internal wrangling. Who can be an effective mediator? ANSWER: The UN itself is an unlikely venue because China is a permanent member of the Security Council and would veto any discussion on efforts to decrease tensions in the South China Sea. The UN Charter makes provision for the role of regional organisations. While ASEAN may appear weak it is not without influence. Indonesia has pushed progress on a draft ASEAN Code of Conduct most recently at last Septembers meeting of foreign ministers on the sidelines of the annual meeting of the UN General Assembly. ASEAN and China are committee to holding a meeting of their joint Working Group on the DOC at director general level this August or September. China has reportedly agreed to begin discussions on a COC at this time. The Indonesian draft contains two proposals for dispute settlement, the first is via the ASEAN High Council contained in the ASEAN Treaty of Amity and Cooperation, the second proposal is to sue the dispute settlement mechanisms listed in UNCLOS. Beyond that it is difficult to find any third party that has enough diplomatic clout and has not been involved in maritime security issues. But a grouping of leading maritime powers could push for a modus vivendi to maintain the peace through the ADMM Plus process and at the East Asia Summit. All these bodies could do is exert moral and political pressure on China. China behaves badly in the South China Sea because it has picked its fight with relatively weak states. Without a strong countervailing force to confront China, China will slowly exert its control over the South China Sea by first nibbling away at the Philippines.

3 3. Will the Philippines gambit of bringing its territorial issues with China before an UNCLOS arbitration tribunal provide a new avenue toward a solution to the conflicts? ANSWER: The Philippines claim to the UNCLOS Arbitral Tribunal is designed to confirm in international law its present maritime zones and declare invalid Chinas nine-dash line ambit claim. The Philippines also seeks the withdrawal of Chinese from low-tide elevations that form part of the Pilippine continental shelf and an end to Chinese harassment of Filipino vessels and state ships on the high seas. The Arbitral Tribunal has been officially constituted and it must now decide whether the Philippines has a case under international law and if so whether or not the Tribunal has the authority to act. Philippine officials say that a decision on these questions could be made as early as July. If the Arbitral Tribunal rejects the claims made by the Philippines the security situation in the South China Sea will be set back irreparably. There will be no recourse to international law and China will become more brazen in asserting its claims to indisputable sovereignty. If the Arbitral Tribunal takes up the case a decision may take up to three or four years. If the Tribunal rules in favour of the Philippines and China complies there are grounds for optimism that territorial claims will be clarified and thus lay a basis for final resolution. Of course there is no enforcement mechanism to back up a ruling by the Arbitral Tribunal and the Tribunal could give a mixed decision that favours the Philippines in some respects and China in others. Whatever the case, no dispute settlement mechanism set up under UNCLOS can resolve conflicting claims to sovereignty. This will still remain a matter for the states directly concerned. 4. Do you think fishing fleets represent a weak link in the chain and a particularly vulnerable sector that could be a source of crisis in the disputed waters since they generally are ordinary people who roam everywhere and are not bound by strict protocols at sea like naval, coast guard and civilian maritime forces deployed by rival claimants? ANSWER: The fishing fleets of China, Vietnam and the Philippines represent three separate cases. In Chinas case its fishing fleets are an extension of local government and are employed strategically by national leaders to advance Chinas interest. Chinese fishing captains can act with impunity towards foreign nationals because their government will always back them up. Civilian paramilitary vessels keep close watch on Chinese fishermen and they are linked through a communications network. Vietnams fishermen also come under the authority of the local government. They have been encouraged to assert Vietnams sovereign jurisdiction in disputed waters around the Paracels. This means there will be continued incidents with Chinese authorities. China has varied its response, in earlier years it acted harshly. In recent years China has set up a cordon and chases away Vietnamese boats found poaching. Filipino fishermen are not an arm of local government nor have them been employed as an instrument of the central government. They basically fish in the waters within the Philippines EEZ but incidents are likely to arise because China disputes jurisdiction and employs heavy handed tactics to drive them away.

4 Fishermen from all three countries stray into the waters of neighbouring states of the littoral countries surrounding the South China Sea. ASEAN countries have at least worked out a modus vivendi in handling such incidents. It is incumbent on the authorities coast guard and other maritime enforcement agencies to act in a professional manner against fishermen who encroach into the EEZs of their home country. If private fishermen are caught fishing illegally they should bear responsibility for their actions. But there is no need for enforcement authorities to use deadly force such as firing weapons or ramming fishing craft. Fishermen who are apprehended should not be beaten or coerced but properly detained. 5. Do you expect more of these encounters in the South China Sea? The one involving Taiwan recently came as a surprise because both sides have not had a recent history of being adversaries unlike China and the Philippines and Vietnam. ANSWER: Encounters between Chinese authorities and Southeast Asian fishermen will continue because of Chinas annual imposition of a unilateral fishing ban above 12 degrees north north latitude, and because Chinese enforcement ships will continue to assert sovereign jurisdiction in contested waters. The Taiwan case can be easily resolved if the Philippines expeditiously carries out a fair and transparent investigation into the matter. Coast Guard officials said the Chinese fishing boat tried to ram their vessel. Is there any video evidence for this? What accounts for the more than fifty bullet holes in the Chinese ship? The facts of the case are contested and need to be established. If standing orders or rules of engagement were violated, then the Philippines should take proper action. If there are mitigating circumstances the Philippines should make them public. On the face of it the shooting to death of a Taiwanese fishing boat captain was an exceptional incident. The Philippines should have immediately conducted an investigation.

Suggested citation: Carlyle A. Thayer, South China Sea: Fishing in Troubled Waters, Thayer Consultancy Background Brief, May 18, 2013.