뉴스레터

Q : What are the details of the regulations recently issued by the Hainan Province of China?

When China announced an air defence identification zone (ADIZ) over the East China Sea on November 23, 2013, it was expected that a similar move would be made in the South East Sea as well. Instead, however, new fisheries regulations were issued from the Haninan provincial government, which would restrict the access of foreign fishing vessels to these waters. Specifically, the Hainan Provincial Department of Commerce announced a fisheries law (海南省實施〈中華人民共和國漁業法〉辦法)¹⁾, which would go into effect as of January 1, 2014, prescribing that "all foreigners or foreign vessels shall obtain permission from the relevant department of China's State Council to fish or survey fisheries resources in waters under the jurisdiction of the Province (Article 35)." This means that all foreign fishing vessels entering the South China Sea are essentially required to obtain authorization from the Chinese government.

<중국이 해양관할권을 주장하는 구단선(U라인)> 筆者 작성

Q : Isn't the Hainan fisheries law in conflict with international law?

The South China Sea is a semi-enclosed sea covering about 2,740,000㎢, and it is claimed by a number of countries, including China, Vietnam, Taiwan, the Philippines, Malaysia, and Brunei, for their territorial rights and maritime jurisdiction. Territorial rights and demarcation lines in these waters are still in dispute among the countries concerned. Under the circumstances, the Chinese government's moves to impose unilateral restriction on foreign fishing vessels entering and operating in these waters could be regarded as a violation of the UN Convention on the Law of the Sea (UNCLOS).

Q : How are the countries concerned responding to the Hainan law?

The countries concerned stated that they did not recognize the Hainan law. Jen Psaki, the spokesperson for the U.S. Department of State, condemned China by saying, "The passing of these restrictions on other countries' fishing activities in disputed portions of the South China Sea is a provocative and potentially dangerous act." Psaki added that "China has not offered any explanation or basis under international law for these extensive maritime claims." and that "Our longstanding position has been that all concerned parties should avoid any unilateral action that raises tensions and undermines the prospects for a diplomatic or other peaceful resolution of differences." The Philippines views these latest moves as part of China's strategy to bolster their soverighty over the South China Sea. The Philippines noted that these latest Chinese moves were in violation of the UNCLOS and that China's unilateral application of its domestic law outside its territorial waters and exclusive economic zones (EEZs) were not accepted. Vietnam, in a briefing by the spokesperson for its Foreign Ministry, pointed out that "since Vietnam is the holder of indisputable rights over the Paracel and Spratly islands, all foreign activities at these areas without Vietnam's acceptance are illegal and groundless." Taiwan, although it rarely expresses its stance on matters related to China, also stated that "Taiwan does not accept China's regulations, and views the major island groups and waters of the region as the long-standing territory of the Republic of China (Taiwan)."²⁾

<중국의 도련선> 출처: http://osimint.com

Q : What is the background of China's announcement of a fisheries law over the South China Sea following its announcement of an ADIZ over the East China Sea?

Since the U.S. announced 'pivot to Asia' in 2010, China's 'new type of great power relations (新型大國關係)' has been challenged. On a number of occasions, China has made it clear that it will not tolerate the U.S.'s unilateral pursuit of supremacy in its front yard of the East Asian region.³⁾ To illustrate its point, China has stepped up its dispute with its neighboring countries over territory and maritime jurisdiction, bolstered its power of national defense, and responded aggressively to the U.S pivot to Asia. In particular, China is striving to become a 'maritime country,' a prerequisite for becoming a power, as clearly illustrated by its latest strategies that place emphasis on the sea. Once Xi Jinping (習近平) came to power, China broke through the first island chain (the line that connects Okinawa to Taiwan and to the Philippines) in an effort to strengthen its naval power. Specifically, the Chinese navy recently sailed from the South China Sea to the Indian Ocean and into the West Pacific through the Lombok Strait between the Indonesian islands of Java and Sumatra. Last July, the Chinese navy fleet passed through the Soya (La Perouse) Strait between Hokkaido of Japan and Sakhalin of Russia into the Pacific.⁴⁾ Patrol planes of the Chinese military had begun flying past the Miyako Strait of Okinawa into the sky above the Pacific, and started activities in the US EEZs. They are targeting to break through the second island chain (Ogasawara-Guam-Saipan-Papua New Guinea) by 2020 by launching a long voyage to the Strait of Magellan in South America.

However, the new type of great power relations that China is trying to establish seems unlikely without the approval of the U.S. In other words, the present is a transitional period before a new order is established between China set to fulfill its goals and the U.S. trying to stop it. And China made its first attempt to challenge the U.S.-centered order that had lasted for nearly 70 years since World War II by announcing the East China Sea ADIZ last year. Therefore, it seems inevitable that the conflict between the U.S. and China within the East Asian region will increase for the time being until a new order is established. And resistance from the neighboring countries is also likely to intensify further. Given the basic principle of China's foreign policy that China will not succumb to external pressure in any circumstances when it comes to matters concerning its national sovereignty, security, and interest. there will be inevitably some friction with its neighboring countries. However, unlike the announcement of ADIZs which has no basis under international law, the matters of fisheries in territorial waters, EEZs, or the high seas and of maritime delimitation have a clear basis under the UNCLOS. Accordingly, China's announcement of the fisheries law and unilateral claims of maritime jurisdiction over areas enclosed by the nine-dotted line is subject to assessment in light of international law. This will leave China with relatively little room to maneuver.⁵⁾

Q : Is the South China Sea one of China's "core interests?"

In 2010, the Chinese government included the South China Sea in its 'core interests.' By 'core interests,' the Chinese government means absolute national interests that can be neither compromised or yielded to foreign countries. And this term has been used mainly in relation to the matter of territory.⁶⁾ Article 2 of the 1992 Law of the People's Republic of China Concerning the Territorial Sea and the Contiguous Zone provides that "The territorial sea of the People's Republic of China is a belt of maritime area adjacent to the land territory and the internal waters of the People's Republic of China" and that "The land territory of the People's Republic of China includes the mainland of the People's Republic of China and its offshore islands, Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands that belong to the People's Republic of China."

Q : What is the outlook for the South China Sea dispute and how can it be resolved?

Given that sovereignty and maritime jurisdiction over the islands in the South China Sea are still disputed, China's unilateral moves made recently are in violation of the UNCLOS. According to Article 74 of the UNCLOS, "the delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law" and "pending agreement, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional agreements (e.g. fisheries agreements)." It seems unlikely for now that the states concerned, including China, will resort to force. They tend to abstain from resorting to nationalism. This is quite different from the case of the Senkaku/Diaoyuda dispute in the East China Sea where the parties concerned resort to the nationalistic sentiments of the Chinese and Japanese peoples. Therefore, even though the matters of sovereignty over the islands and maritime delimitation may not be resolved immediately, it is desirable to enter into a 'regional fisheries agreement' or 'international fisheries agreement' in the South China See because it concerns the livelihood of fishermen in many countries surrounding these waters.

¹⁾ http://www.hainan.gov.cn:1500/data/law/2013/12/1900/ (2014-2-18 검색)
²⁾ 한국원양협회에 따르면, 우리나라 선단은 남중국해에서 조업을 하지 않는다. 그러나 우리는 작년 중국의 항공식별구역 선포와 이번의 해남성 어업조례 선포 등 하늘 및 해양에 대한 중국의 영역확대 움직임을 예의주시할 필요가 있다.
³⁾ 중국이 제시하고 있는 '신형대국관계'란 기존의 미국 중심 일초다강(一超多强)의 구조보다 미국과 중국이 중심이 되어 적대적 대결보다는 호혜와 협력을 바탕으로 하는 새로운 국제체제를 의미한다.
⁴⁾ Demetri Sevastopulo, Charles Clover, "Quest for blue water makes waves", Financial Times(2014-2-13), 4면
⁵⁾ 구단선이란 1948년 중국 정부가 처음 발간한 지도에 9개의 점선을 사용해 남중국해 전체를 포함하여 해양 관할권을 주장한데서 비롯된 용어. 'U라인'으로도 불린다.
⁶⁾ 이러한 중국의 '핵심이익' 지정은 상대방과의 대화나 협상이 불가능하다는 신호를 주게 되어 지역의 긴장감을 높이게 되는 점에서 문제가 있다. 특히 영유권 및 관할권이 충돌하는 경우 상대방 국가의 주권과 정면충돌하기 때문에 문제해결을 더욱 어렵게 한다.