South China Sea: Fishing in Troubled Waters

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South China Sea: Fishing in Troubled Waters

Could partnered fisheries enforcement be the best follow up to the recent PCA ruling?

South China Sea: Fishing in Troubled Waters

The United States Navy does fisheries enforcement.

That’s not a headline, a recommendation, or a prediction for the future. It’s a practiced fact.

Today, the United States Navy and the United States Coast Guard routinely operate together under the Oceania Maritime Security Initiative (OMSI) to conduct fisheries enforcement missions in partnership with other countries, embarking their representatives on U.S. platforms for enforcement patrols within non-U.S. EEZs.

The Navy’s innovative interagency and mutinational experience in fisheries enforcement is not widely noted. (After all not much is sexy about fish policing.) But it might be the appropriate model for a low-risk, high-impact operational response to the recent Permanent Court of Arbitration (PCA) ruling in the South China Sea. Partnered fisheries enforcement in the Philippine EEZ might consolidate both the PCA ruling and demonstrate Manila and Washington’s joint commitment to the rule of law in a tangible and effective way.

The Deafening Silence of the Status Quo

Since the Permanent Court of Arbitration (PCA) tribunal issued its ruling on the landmark Philippine-China arbitration on July 12, there has been a deafening silence from most of the primary stakeholders in the outcome. China, of course, has been an exception: Immediately following the ruling (and arguably before) Beijing moved quickly to maintain political, diplomatic, and operational momentum. Dismissing the ruling as “waste paper,” calling for a “people’s war at sea,” and continuing to make infrastructural improvements on its artificial installations in the Spratlys, Beijing’s escalatory activities have remained steady — this despite confirmation from the Court that many of China’s activities have no basis in law.

For its part, Vietnam has not been left flat-footed. Keeping pace with Beijing’s activities, Vietnam contributed to a hardening of positions by placing new rocket launchers on several of its holdings in the Spratlys. Though Vietnam’s capabilities are much more modest and its operational position at great disadvantage to Beijing’s, Hanoi has clearly signaled that it won’t accept a fait accompli in the South China Sea, at least while it has some wherewithal to resist. Vietnamese resolve means that its artillery and Chinese missiles now sit less than 200 nautical miles from one another in what must surely be the world’s most dangerous sea.

Meanwhile, the Philippines’ newly minted President Rodrigo Duterte has mounted a diplomatic initiative that reaffirms the ruling of the PCA while also recognizing the need for continued dialogue; Indonesia’s government has recently set up a legal task force to explore Jakarta’s options in the same vein. Malaysia has remained curiously silent on the ruling and the ongoing maneuvers by Vietnam and China, but no less silent than ASEAN, which (incredibly) failed to mention the South China Sea or the arbitral ruling in the communiqué emerging from its foreign ministers’ meeting* last month.

The anemic response isn’t only disappointing, it’s dangerous. While it is entirely understandable that all parties remain prudent and cognizant of the dangers of escalation, neither does it pay to acquiesce to Chinese behavior, which has clearly been destabilizing. Beijing’s intransigence has been significant: rejecting international law and legal procedure out of hand and encouraging other governments to do the same, reckless military posturing despite its diplomatic commitments under the 2002 ASEAN Code of Conduct, and incitement of nationalist fervor at sea outside the traditional military chain of command and control. Acquiescence to what can only be interpreted as China’s reckless disregard for regional stability will not only encourage Beijing to believe that it alone sets the rules for regional waters, but might also set legal precedent that undermines the broader rule of law.

Between Escalation and Acquiescence?

An appropriate response by stakeholder nations would underscore and extend the ruling of the PCA by means that are as non-escalatory as possible without being acquiescent. So far, most insightful commentaries have focused exclusively on the military or legal aspects of this dispute alone. Unfortunately, neither discussion permits much room for creative policymaking, one being excessively escalatory, the other being excessively normative and, so far at least, unable to influence Beijing. But there’s a forgotten policy space that lies between those two poles. Constabulary power offers a tantalizing prospect for progress here, that is, fisheries enforcement in confirmed areas of EEZ.

It should be acknowledged that the PCA ruing left many things unresolved – most notably, ultimate sovereignty of the features in the Spratly Islands. It clarified a few things as well, but these are dauntingly difficult to enforce, such as the validity of the nine-dash line and the illegality of Beijing’s construction on Mischief Reef. However, the ruling did undeniably confirm two things: that Mischief Reef is not capable of generating maritime zones, and so falls within Manila’s EEZ; and second, Scarborough Shoal only generates a 12 nautical mile territorial sea within the larger Filipino EEZ, and that all traditional (including Filipino) fishermen should retain access.

In principle, these rulings are easily consolidated through maritime law enforcement activity in confirmed areas of Philippine EEZ. But with a high volume of Chinese-flagged and -subsidized fishing vessels regularly fishing in the zone with the apparent rear-guard support of the China Coast Guard, Manila couldn’t mount an uncontested operation alone. The Philippine Coast Guard and even the Philippine Navy have limited capacity. But acting with the United States under a partnered agreement suited to the circumstances is an option worth exploring. Such a framework might be modeled after Washington’s existing fisheries partnerships in the Pacific Islands under OMSI. Regular credible fisheries patrols in Philippine waters (including those around Mischief Reef and near Scarborough Shoal) would operationalize the spirit and the letter of the least controversial parts of the PCA ruling.

For the United States, a fisheries pact with the Philippine Coast Guard would be a natural and non-escalatory activity under its alliance with Manila in line with its stated commitment to the rule of law in Southeast Asian waters. And, as the United States Navy already has both a near-consistent presence in Philippine waters and direct experience in partnered fisheries enforcement, the operation is “shovel-ready.” It should be noted that partnered fisheries enforcement in the Pacific represents a best practice in innovative governing. There are two enablers: an operating agreement between the U.S. Navy and the U.S. Coast Guard on the one hand, and bilateral ship-rider agreement between the United States and the partner nation on the other. The result is that today, a U.S. Navy vessel carrying U.S. Coast Guard personnel and partner authorities can detain, inspect, confiscate, and arrest foreign fishing vessels operating illegally in partner EEZs. This creative interagency and international framework has been successfully operating in the Pacific for half a decade, putting some much-needed muscle behind fisheries management there. Is this the model for U.S.-Philippine partnership going forward?

There are downsides to this proposition. It is well known that “commercial” fishermen around the nine-dash line are affiliated with and perhaps directed by Chinese government authorities, which means that confronting these trespassers carries some risk. To say nothing of the fact that the U.S. Navy cannot and should not be Southeast Asia’s fish police for the long-run; that mission properly belongs to the region’s residents. But in the immediate term, limited use of U.S. Navy platforms for this purpose is a proposal that has much to commend it. It will unequivocally underscore Manila and Washington’s joint commitment to abide by the PCA ruling while demonstrating that the Philippines’ sovereign right to police its own jurisdiction is sacrosanct, no matter its size or capability. It will signal to Beijing that it does not have a free hand in Southeast Asia, particularly in the sovereign jurisdictions of Southeast Asia’s smaller states. It may reduce the volume of official and semi-official activity undertaken by China’s maritime services in Philippine EEZ, diminishing the operational risks of confrontation or dangerous unintended encounters around the Spratly Islands. And it may also provide some badly needed deterrence to ongoing construction projects on and around Mischief Reef.

All things considered, strengthened fisheries enforcement – partnered, legal, and effective – may be the best way to extend the PCA ruling with the least possible risk to regional stability. The baseline reality is that the United States Navy knows how to do partnered fisheries enforcement. That capability is badly needed in the Philippine EEZ. And the apparent alternatives, either military posturing or de facto acquiescence to Chinese behavior, might prove the riskier options in the not- so-long-run.

Kerry Lynn Nankivell is an Associate Professor at the Asia-Pacific Center for Security Studies in Honolulu, HI. The views expressed in this article are those of the author alone and do not represent the official view of U.S. Pacific Command, the U.S. Department of Defense or the United States government.

*Corrected from the original “summit”.