Sunday, January 12, 2014


China Asserts Control Over Vast Sea Area, Angering Neighbors, U.S.,0,4101242.story#ixzz2q6rtqsex

 At long last some general media attention to the tense situation being generated by China in the China seas. But as usual the actual situation is more complex that either the U.S. media or State Department comprehend. But in its complexity is the very hope that if the Chinese leadership isn't suicidal there is no real change in the status quo. The and the U.S. State Department seem confused over the the use of the terms "ship" and "fishing vessel" in the Chinese announcement and don't seem familiar the underlying rule of international law. On Saturday the Los Angeles times carried an article that began with this paragraph.

     "By Carol J. Williams

Vietnam, Taiwan, the Philippines and the United States have criticized China for imposing new access rules for the vast South China Sea, saying Beijing's demand that foreign vessels get approval to enter the disputed maritime area is provocative and potentially destabilizing......" link to LA Times Article,0,4101242.story#ixzz2q6tgZ5lK

  The article also printed a response by China to the international complaints :

  "But Chinese Foreign Ministry spokeswoman Hua Chunying retorted Friday that the rules that went into effect at the start of the year are simply "technical revisions" of existing laws governing the resource-rich waters off China's Hainan Province. She said foreign governments' complaints that Beijing is courting trouble spring from "ulterior motives." Link:

   Here's the real question. How far off Hainan Province? To the South southwest the Province doesn't have much open water separating it from Vietnam. Elsewhere the Province may have EEZ jurisdiction recognized by International law out to about 200 miles. 

 What's going on? Basically China has announced new commercial fishing regulations for an area that the media coverage leaves rather unspecified. Other than geographically vague references such as "the resource-rich waters off China's Hainan province." Under International law China does have some serious law enforcement rights over large parts of such a vaguely defined area. This is an area where there are some on going international disputes, but a large portion of the area does exist within China's internationally recognized Exclusive Economic Zone (EEZ). 

  Near Hainan, China and Vietnam are separated at most points from each other by less than 200 miles of open water. This means that the borders of their respective EEZ under the United Nations Law of The Sea Convention must be negotiated, they have not been, and the boundary is unsettled.  Normally, if we skipped over the EEZ boundary dispute with Vietnam and considered a line drawn seaward from the tip of Hainan in a South Southeasterly direction, China would have normal treaty rights to an EEZ to about 200 miles out. Unfortunately at about that distance seaward lay the Paracel Islands which are also about the same distance from Vietnam's mainland off of Hue. So the Paracel Islands are an area of legal island sovereignty dispute. From the Paracels North northeastward to a point somewhere between Hong Cong and Shantou where the sea begins to narrow, international  law would recognize China as having an Exclusive Economic Zone extending seaward about 200 miles from the Chinese mainland.

  The problem arises in that China claims seaward of their recognized EEZ the entirety of the China Seas including the Spratly Islands virtually to the beach line of the main islands of the Philippines. Under International law the Philippines literally owns most of the Spratlys as their sovereign territory and as land masses within their EEZ  with the exceptions of some legitimate contests near their Southwestern borders. China attempting to enforce any Chinese national laws outside of her recognized EEZ is illegal and objectionable. However this latest announcement by China need not be an occasion for alarm.

 First China has a legitimate right to enforce her national laws for benthic fisheries (bottom dwelling species) with in her own rather vast legitimate EEZ.  China also has the international right, duty, and obligation to enforce the various migratory fishing within her own EEZ.  For hundreds of miles along the Chinese coast from the recognized line of demarcation mostly on the mainland to a point seaward to 12 miles China has her territorial sea in which she may enforce any and all of her national law against any and all comers. At 24 miles out China and every other coastal nation has a customs enforcement zone that allows her to enforce her customs laws if probable cause can be shown.  And again within a zone that has to be negotiated in its corner regions China has exclusive oil and mineral rights, and benthic fisheries rights, and migratory fish stock international treaty enforcement duties out as far as 200 miles from her mainland except where there is less than 200 miles separation between China and her coastal neighbors.  In those areas the boundary must be negotiated.  Instead China has been using veiled threats of force and out right naval presence to demand areas the Dragon is clearly not entitled to. 

 Now assuming for a minute that our wayward dragon actually stayed within her recognized sea boundaries, these fishing regulation revisions assuming they don't change basic provisions of international migratory fish stocks treaties are within her right to revise as often as China sees fit. Indeed responsible coastal states will frequently 
change fishing regulations based on periodic biological data. So China on initial examination  had every right to issue new fishing regulations within her own legitimate and recognized EEZ.   Making loud protest without drawing that distinction plays right into China's propaganda position that all those states objecting have "ulterior" and "political motives".  Indeed they do, they are concerned with the illegitimate territorial attempted EEZ grab by the Dragon. But, by not making a detailed and nuanced objection based on WHERE China intends to enforce these rules vice the fact that China has made new rules we play right into China's propaganda position of victim of imperial powers. We also aid and abet her legal position that she is effectively administering the claimed areas. If the law doesn't apply to your vessels why protest? If China is not lawfully in areas where their Coast Guard is conducting enforcement operations respond, with force if necessary. 

 Within their own recognized EEZ China has the legal right , provided there is probable cause, to stop any "ship", "vessel", "boat", or "barge" that it has probable cause to believe is violating her oil and mineral rights, or either China's benthic fishing regulations or international migratory fishing conventions. To enforce those international fishing conventions coastal states have the right to board any and all commercial fishing and fish processing vessels within their EEZ. These selective enforcement rights are not seen as interference with the right of innocent passage of commercial navigation. In practice few ships other than fishing, fish processing vessels, or seismic exploratory vessels are ever stopped much less visited and searched. Nothing in China's announcement of revision of her fishing regulations obligates China or announces that she is going to enforce these regulations outside of her EEZ, territorial, or customs enforcement waters.  If China decides to reverse course and back off of her present dangerous policy of unlawful invasion, and trespass, and unsupportable international litigation, the Dragon has left the door open for face saving.  Probably nothing in the announced regulations would have to be changed. All that would be changed would be a policy pulling the Chinese Coast Guard back to the actual, recognized, legitimate Chinese EEZ.  

 If the neighboring states wanted to give the Dragon a face saving way out they could organize a conference on fishing regulations, agree to temporary joint licensing and enforcement within areas of legitimate dispute such as the Spratlys and enter into agreements with the Chinese Coast Guard to sell to the Chinese Coast Guard a limited number of fishing licenses within neighboring state's EEZ that have been traditionally visited by Chinese fishermen. To the Chinese commercial fishing public there would be little change or inconvenience. Chinese commercial fishermen would still see their own fishing regulators for licenses. Once legitimately in neighboring waters as long as they didn't violate what would hopefully be rather standard regional regulations, they would no longer need Chinese gun boats to help them force their way into the fishing grounds. All that would be required is for the Chinese leadership to realize that the present course can only lead to a naval war with an alliance force that will sink the Peoples Liberation Army's Navy (PLAN) despite its great size and lead to a lot of unrest and demand for regime change on the mainland, despite the total lack of any invasive effort by the alliance. 

 China's neighboring states, especially the formal U.S. allies need to engage each other and resolve the EEZ boundary area disputes that exist among themselves and present a united front to China. They must demand that China approach any claims or disputed boundaries within the frame work of the UN Convention on the Law of the Sea. China can have no legitimate claim on any of the Spratlys within the Philippine recognized EEZ. But the ham handed U.S. State Department as well as our regional allies need to have a detailed and insightful understanding of the governing underlying international law. We need to leave China a face saving way out. This latest provocation needed to be addressed differently.  Any protest should have been focused on China's illegitimate naval activity inside the EEZ of neighboring coastal states. 

 However it was presented, the U.S. media and obviously the Chinese foreign service, took it as a challenge to Chinese maritime law enforcement authority generally. China certainly can't sustain her claim to the entire East and South China seas virtually to the Vietnamese and Philippine beaches and including the internationally recognized southernmost islands of Japan.  But China absolutely has maritime law enforcement duties in her territorial, customs enforcement zone, and EEZ waters. 

 Let's put ourselves in the position of the ordinary man on the street in China. He knows that his nation holds internationally recognized rights over vast ocean areas, but he hasn't got a clue of where the international law sets the boundaries. He is being over sold  illogical and illegally large claims but probably has no idea of the real boundary issues. When we appear to be challenging China's right to enforce its recognized authorities at sea generally the real boundary issue doesn't exactly come shining through. The regime in China is stirring up this disorder for domestic consumption. We have to stick to the issue and attempt to narrow it, and always allow the Dragon a face saving way out. Again their recent announcement is only objectionable if they intend to enforce it outside their recognized EEZ boundaries, which they are presently telling their people are being opposed by their neighbors.  Nothing in their announcement requires them to go enforce these regulations within a stone's throw of the Philippines. Now they will probably try.

  The Dragon needs to take a lesson from this latest confrontation as well. If the United States and those regional nations linked by formal alliance can misread, or inaccurately describe this action, you can not rely on them to always and unfailingly be excruciatingly correct in dealing with your unlawful inroads. This aggressive naval behavior will end up in a shooting incident sooner or later.  It won't matter who fired first. It will escalate and cause the China Seas to run red with sailor's blood and the down fall of the present regime and and economy in friendless China. China is alone in the world except for a formal alliance with the lunatic state of North Korea. The nations the Dragon is attempting to steal from by the naval equivalent of armed robbery are far from friendless, and far from weak.  


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