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Background Briefing: South China Sea: Chinese Fishing Fleet Sets Sail Carlyle A. Thayer May 7, 2013

[client name deleted] 1. After agreeing to begin talks with ASEAN on a code of conduct for the South China Sea, what are the Chinese really up to by this move? Would it be over the top or too nationalistic for the Vietnamese to consider this move a provocative step? ANSWER: Ever since the adoption of the Declaration on Conduct of Parties in the South China Sea in November 2002, ASEAN members and China have been notionally committed to adopting a Code of Conduct. China willingness to enter into multilateral talks with ASEAN should be cautiously welcomed as an initial positive step forward. Chinas new foreign minister appears to be responding to ASEANs call for talks on a COC and to lobbying by individual members of ASEAN such as Brunei, Indonesia, Singapore and Thailand. China is very likely to play on differences within ASEAN. But at the same time China cannot be blamed if ASEAN itself fails to present a united front. ASEAN foreign ministers have a nearly completed draft COC. ASEAN will need to complete this draft and present it to China. The key to reaching agreement on a legally binding Code of Conduct is agreement among all the parties to shelve their territorial disputes and act in accord with the letter and spirit of the COC. In legal terms, the China and ASEAN members would agree to cooperate on implementing the COC without prejudice to their territorial and sovereignty claims. Chinas past track record does not give grounds for being optimistic about the early adoption of a COC. In the past China stated that progress on the COC cannot commence until some countries change their attitudes and behaviour and act in accordance with the DOC. In other words China has set the pre-condition when conditions are ripe. 2. Thirty Chinese fishing vessels on Monday set off from a harbor in the country's southernmost province of Hainan for the Nansha Islands, which Vietnam calls Spratlys, in the South China Sea. The fishing ships, each with a capacity exceeding 100 tons, will stay around the Spratlys for 40 days. The vessels, equipped with all-weather communication devices, will be under unified command. A supply ship and transport vessel will be accompanying the fishing fleet.

2 "We are exploring ways to exploit high-seas resources in systematic manners," Huang Wenhui, who heads the fishing office in the Department of Ocean and Fisheries of Hainan Province, was quoted by Xinhua as saying. Thirty fishing vessels were sent to the islands in July. The ultimate goal of the operation is to develop a business model that allows fishermen to catch fish around the Nansha Islands on a regular basis, Huang added. By taking this move, are the Chinese trying to create a fait accompli that the Spratlys are their own even after they have occupied the Paracels? What message is Beijing trying to send to other claimants? ANSWER: Chinas approach to its territorial claims in the South China Sea is part of its military doctrine that includes legal warfare. China bases its action on domestic legislation and its own unilateral interpretation of international law. China s ushaped line claim to the South China Sea on the basis of historical rights provides, in Chinas view, the legal basis for fishing anywhere in the South China Sea. If China is not opposed by claimant states, Chinas actions lay the foundation to clai m that littoral states have acquiesced and accepted Chinas territorial claim. The case of Chinas annexation of Scarborough Shoal is an example of creating a fait accompli. China is sending a message to all claimants that it will continue to exploit the fishing resources in the South China Sea by sending ever larger fishing fleets that will remain on station for longer period of time. China is counting on the claimant states not to oppose Chinas actions. 3. What kind of action should Vietnam take in response to this move? Does it have any bearing on the conflict? ANSWER: At a minimum Vietnam must lodge diplomatic protests if Chinese fishing boats enter its Exclusive Economic Zone and fish without permission. Vietnam should seize this opportunity to publicize the fact that fishing resources in the South China Sea are dwindling due to over fishing and pollution. In order to protect the fishing resources countries around the South China Sea should cooperate in fisheries management rather than act unilaterally and destructively. Vietnam must step up its surveillance of the Chinese fishing fleet and be aware of where it is heading at all times. If it becomes apparent the fleet will enter Vietnams EEZ, Vietnams Maritime Police force should be mobilised to block the Chinese . Vietnam should ensure that its fishing fleet is grouped and can communicate well with each other and maritime enforcement agencies. They should report any sighting of Chinese vessels and keep records of any encounter they may have. 4. With monsoon season now over, fishing boats will go out to sea in larger numbers, and this usually leads to incidents involving trawlers from the Southeast Asian claimants, mostly Vietnam and the Philippines, and Chinese patrol boats. Are Vietnamese fishermen facing the risk of being treated by the Chinese the way they treated the Filipino fishermen? ANSWER: It is likely that China will confront Vietnamese fishermen operating in waters around the Paracels and China will confront Filipino fishermen operating near Scarborough Shoal and in the Spratly Islands. China has varied its response towards

3 Vietnamese fishing boats near the Paracels since 2008-09. China has been firm in asserting its sovereignty but has reacted less aggressively in recent year by putting up a naval cordon and forcing the Vietnamese fishermen to turn away. Isolated incidents cannot be ruled out. China will act aggressively against Filipino fishermen especially if they violate the ban China has placed around Scarborough Shoal. The current ASEAN draft COC has a provision for protecting fishermen. Vietnam and the Philippines should call for China to exercise restraint.

Suggested citation: Carlyle A. Thayer, South China Sea: Chinese Fishing Fleet Sets Sail, Thayer Consultancy Background Brief, May 7, 2013. Thayer Consultancy Background Briefs are archived at Scribd.com