- The Philippines will continue to use a carrot-and-stick strategy toward China in the South China Sea, choosing not to play up its recent victory in the Permanent Court of Arbitration in order to reach a compromise.
- Fishing around the Scarborough Shoal will be a key area of cooperation that will move forward through bilateral talks.
- The true resolution of boundary disputes in the region, however, will continue to be elusive, perhaps even delayed by agreements meant to defuse tension.
Countries with competing claims in the South China Sea are still adjusting to a landmark ruling on maritime boundaries in the region. The Permanent Court of Arbitration announced July 12 its decision to invalidate China's broad claims under the U.N. Convention on the Law of the Sea (UNCLOS), ruling in particular that the Scarborough Shoal has no islands and therefore no exclusive economic zone to claim. The decision marked a victory for the Philippines, for although Manila also counts the shoal as its own, Beijing occupies it. At the very least, the Philippines has managed to ensure that China cannot legally control the shoal and, by extension, has created an opening for other states lining the South China Sea to chip away at China's position under UNCLOS.
But since its victory, the Philippines has played its hand carefully. Manila knows its position is weak — China's military is vastly more powerful than its own. But the Philippines has gained an unprecedented (even if chiefly symbolic) win on the international stage. The ruling could cause significant headaches for China, and by conspicuously refraining from touting the ruling, Manila is incentivizing Beijing to offer compromise and accommodation. Philippine President Rodrigo Duterte, for example, has said he will not bring up the ruling at the September summit of the Association of Southeast Asian Nations (ASEAN). By doing so, Manila can preserve its core interests and gain some concessions from China while continuing to cooperate with Japan, the United States and other outside powers. Within the context of this new dynamic, talk of an accord between Manila and Beijing has centered on one topic in particular: fishing.
Initially, Beijing responded to the court's decision by doubling down. On Aug. 2, the Chinese Supreme People's Court gave a ruling of its own stating that authorities have the right to prosecute foreign fishermen caught in waters claimed by China. The topic came up several times in a meeting a week later between Chinese officials and Philippine special envoy and former President Fidel Ramos. There are signs that policy circles in Beijing are picking up on the subject as well. Ramos spoke with Wu Shicun, the president of China's top think tank on South China Sea studies, who said Beijing and Manila could explore ways to open the Scarborough Shoal to fishermen and jointly develop aquaculture around the sea's disputed features. Duterte then called on China on Aug. 23 to allow Philippine fishing vessels into the contested waters. On Aug. 29, China responded in kind: Ambassador Zhao Jianhua said Beijing would hold bilateral talks and consider allowing Philippine fishermen access to the Scarborough Shoal. Talks have not yet begun, and it is still unclear precisely what form joint access would take (options run the gamut from simple access to a formal, jointly managed fisheries zone). An agreement, however, would help prevent short, sharp conflicts over fishing and could offer a model for cooperation elsewhere in the South China Sea.
Why the Fish Fight?
The fishing industry, though not glamorous, is inherently geopolitical. Wild fish are considered a "fugitive resource": Like game animals, water or air, they move from place to place of their own accord. Fishing vessels then must pursue their catch, often without taking heed of borders or jurisdiction. And fluctuations in catch or limitations in fishing have broad ramifications for littoral nations, pushing vessels farther and farther from their home banks. Because the fishing industry employs so many in an informal capacity, what hurts fishermen hurts all levels of society, from rural constituencies to enormous business conglomerates.
Every maritime region has had flare-ups over fishing before, but the unique geography of East Asia raises the risk of such disputes — and their stakes. The Western Pacific differs from most of the Pacific Rim in that it has wide continental shelves, with numerous coastal waterways and deeply incised gulfs. The coasts of North and South America, by contrast, have narrow continental shelves and relatively simple coastlines. This makes delineating territory in the Asia-Pacific more difficult, especially since most waterways are not broad enough to allow many of the region's nations to claim full 200-nautical-mile exclusive economic zones (EEZs) without bumping up against their neighbors'. Only Russia, Japan, the Philippines and Indonesia have clear EEZ claims, and those exist only in some stretches of sea. Every other state has had to negotiate its EEZ with the countries around it, a process that has left many boundaries unresolved, providing flashpoints for interstate conflict.
Continental shelves make for fantastic fishing, especially in maritime Southeast Asia, which is undergirded by the Sunda and Sahul shelves. The shallow waters of those shelves, which constitute about 20 percent of total shelf area worldwide, provide prime growing conditions for sea life: sunlight, shallow water and nutrient flows from several major river systems that empty into the sea. The environment has produced a startling diversity — over 3,000 species of fish live in the South China Sea alone — and a natural superabundance of catch. For the nations that line these waterways (every Southeast Asian state besides Laos), fishing has been critical to sustaining populations and, in the modern era, to government revenue and industrialization.
In the Asia-Pacific, fish are life. They are also territory, access to which is critical for other reasons: Control of waterways is key for nations to maintain vital trade flows, communication with far-flung regions and access to resources. And fishing breeds conflict that touches on these core interests. The fishing industry is inherently fragmented among countless subregions, and vessels travel through remote waters, making them difficult to regulate — even for governments with the will to do so. With so many attractive fisheries spread across so much territory, and so many littoral nations crammed so closely together, fishing boats can easily stray into foreign waters, either accidentally or in hopes of evading detection.
The situation has been compounded by the massive boom in fishing in the Asia-Pacific since the end of World War II, as the western Pacific industrialized its fisheries at a speed unprecedented elsewhere. By the 1990s, every maritime nation had been forced to develop its own fishing industry in a regional race to exploit their common resource. This has led to massive overfishing and a free fall in catch volumes across the region. And as nations have fished out the waters near their own shores, they have increasingly turned to distant-water fishing in the territories of their neighbors, with a particular focus on poorly patrolled regions. Disputed areas, such as those in the South China Sea, have become an especially attractive target, prompting countless unilateral fishing bans, massive pushes to police fishing and the high-profile destruction of transgressive vessels.
Some nations — including China — have even openly encouraged their fishermen to fish in disputed waters. In doing so, Beijing hopes to preclude the less advanced vessels of its neighbors, not to mention gather intelligence and map the region. Pushing its fishermen outward fulfills its goals for economic and political stability at home while establishing a presence in the waters that are vital to securing trade and strategic depth abroad. It is one small part of a much grander strategy, yet it constantly makes headlines as neighbors capture Chinese fishing vessels in their own waters.
But China has reached a strange juncture. It possesses the lion's share of features in the South China Sea — an unparalleled position. Yet it also does not want to jeopardize its position with aggressive moves or incidents that push other claimants to exploit the court's UNCLOS ruling to its fullest extent or prompt the United States and its allies to conduct a flurry of freedom of navigation patrols. Beijing is developing mechanisms to keep tension low and to address crises, promising to complete the South China Sea Code of Conduct by mid-2017, apply an ASEAN unplanned maritime encounters pact to the waterway and establish a maritime emergency hotline. Joint management of fisheries in disputed waters is another low-stakes option for keeping tension from escalating. It also happens to fit with China's preference for bilateral solutions to conflicting South China Sea claims instead of an international agreement. And depending on how fisheries management plays out, it might also jibe with China's strategy to create a rift among its South China Sea rivals.
In the case of the Scarborough Shoal dispute, the Philippines and China could establish a "joint zone" for fisheries management. The two sides would accept that there is no consensus on the ownership of the features and establish provisional policies for conduct and resource exploitation. This would have the added benefit of being in compliance with UNCLOS articles 74 and 83, which address such temporary arrangements.
There is a precedent for fishing cooperation between China and its neighbors. The prime example is China's arrangement with Vietnam in the Gulf of Tonkin. The gulf forms the northwestern wing of the South China Sea, wedged between northern Vietnam and China's southeastern Guangxi province and Hainan Island, which dominates the mouth of the gulf. The two countries' agreement, signed in 2000 as part of a comprehensive maritime delimitation package over the Gulf of Tonkin, came after China and Vietnam re-established relations in 1991 following decades of acrimony, including a 1979 border war. As a shared body of water so close to critical regions and fishing communities, the Gulf of Tonkin was a core territorial issue to resolve — and one that led to numerous seizures of Chinese vessels by Vietnamese authorities for alleged incursions. Seven years of talks yielded a boundary near the midpoint of the gulf. It also set up a 33,500-square-kilometer (12,934-square-mile) overlapping fishing zone, about 30 nautical miles wide, that extended from the land border to the mouth of the gulf. The two governments are allowed to control and inspect their respective EEZs, exercise joint development, and oversee vessels in the shared zone. The area is managed by a joint committee.
But it is not a precise model for agreements elsewhere. In the Gulf of Tonkin, both sides were able to fully resolve their maritime boundary without ambiguity. (Although notably, they did not settle their outstanding disputes over the Paracel and Spratly island groups — the boundary ends at the mouth of the gulf.) Given China's occupation of features in the Paracels and Spratlys, as well as at the Scarborough Shoal, and its interest in maintaining access to the South China Sea, delimiting those boundaries will not happen for a long time — if ever. That multiple nations lay claim to a large swath of the South China Sea makes joint fishing and exploration, let alone delimitation, an extremely complex issue.
The Gulf of Tonkin agreement, however, has succeeded in its primary objective: ending clashes in the gulf and, in particular, those over fishing vessels straying into undemarcated waters. The jointly managed zone allows Vietnam and China to maintain a buffer between each other with at least a pretense of shared management. Joint patrols began in 2006, and the joint committee meets a few times each year, though the shared zone is not closely monitored or controlled. The accord was also struck at a time when China was less ascendant and more likely to compromise with a neighbor. Any agreements reached now are likely to be tilted more in China's favor.
A second joint fisheries management agreement involving China, this one in the Senkaku Islands, has been less successful, though it did manage to hold for a short period. It was particularly noteworthy for the country China signed it with: Beijing's regional rival, Japan. The Senkaku Island group in the East China Sea northeast of Taiwan is controlled by Japan but claimed by China as the Diaoyu Islands. Because of the mutually competing claims, there is no boundary demarcation between the two nations' EEZs. In November 1997, China and Japan agreed to set aside their dispute to establish a provisional fishing zone that extended along their border in the East China Sea, including the area around the Senkaku Islands. The deal was an extension of the 1975 Fisheries Agreement that established conduct between Chinese and Japanese fishing vessels in the Yellow and East China seas and kept fishing vessels out of each other's waters. The 1997 agreement essentially created a gap in which normal fishing activities between both sides could continue.
In this zone, both sides had jurisdiction over their own vessels but also a limited ability to monitor and regulate their counterpart's vessels. Fishing disputes in the zone were managed by the joint committee or, failing that, direct negotiations. The cooperation agreement came into effect in 2000 and was meant to last for five years. It enshrined Japan and China's exclusive rights to fishing in their own EEZs, established collective oversight through a joint fishery committee and provided guidelines for mutual access to the waters. Both sides were also meant to conduct joint patrols.
But the agreement is no longer functioning –- tensions between Japan and China rendered it largely ineffective. Its failure highlights the fragile nature of striking fishing agreements without first setting a delimitation. Even so, a nearly identical agreement signed by Japan and Taiwan in 2013 has held. (Taiwan claims the same maritime boundaries as mainland China.)
What Lies Ahead
A similarly targeted agreement between China and the Philippines would not need to take as long to hammer out as the Tonkin deal did, especially since it would have no pretense at permanence. Effective joint fishing cooperation, even in a limited agreement, would depend on several factors. Chief among them would be the mutual interest of both governments in reducing diplomatic tension. Here, another fisheries deal involving the Philippines and Taiwan provides an example. Although Manila and Taipei did not establish a jointly managed zone in the waters each claims, the two struck a deal in 2015 — with an eye to their mutual interests against Beijing — not to use force against each other's fishing vessels in disputed waters. Their shared goal of counterbalancing China remains, as does the fishing agreement. But the lack of a comprehensive delimitation process around the targeted area would leave any agreement subject to the whims of geopolitics. For instance, after China and Japan reached their accord in the East China Sea, it lapsed when heightened tension ended their mutual interest in cooperation. Without boundary delimitation, any deal will be fragile and vulnerable to the vicissitudes of power politics. It is quite unlikely that Beijing and Manila will start the demarcation of Scarborough Shoal for a long time, and in fact it may never occur at all.
In practice, fisheries cooperation would be limited. The highly fluid nature of fishing and fishermen means that their movements will be difficult to govern. Both governments, moreover, have an interest in keeping catch volumes up. Consequently, even enduring cooperation will not cause the fisheries to rebound, even if such cooperation spreads elsewhere. That said, the one clear victory for an agreement would be that the short, sharp (and often unplanned) confrontations over fisheries could be contained enough that they do not provoke the broader crises that could plunge the South China Sea into deeper conflict.
Lead Analyst: Evan Rees