China creates anxiety in hash border patrol announcement
New regulations for the Hainan Province Coast Guard – summarized in People's Republic of China (PRC) news agency reports on November 28 but as yet not published in full – generated a spasm of anxiety through the region and around the world.
Part of the anxiety was due to alarmist reporting by some otherwise prestigious outlets – more on that later – but the PRC government deserves the lion’s share of the blame for its sudden, incomplete, and ambiguous announcement.
If the PRC is going to succeed in its objective of ordering affairs in the South China Seas to its liking through bilateral negotiations with a number of rightfully resentful and suspicious states – chiefly Vietnam and the Philippines – it will have to communicate its tactical moves as escalations and concessions carefully calibrated to the demands of each local hot spot.
To play the rogue dragon blundering through the southern oceans simply reinforces the conviction of China’s neighbors that better behavior and, perhaps, better results can be obtained by the solution that the PRC abhors: the aggrieved nations clubbing together through the Association of Southeast Asian Nations (ASEAN) and with the support of the United States pursuing negotiations in a multilateral forum.
Announcing the new Hainan regulations through fragmentary reports invited China’s South China Sea adversaries/interlocutors to spin the news to suit their priorities and preoccupations.
Judging from the agency reports, the meat of the Hainan regulations was this:
Police in Hainan will be authorized to board and search ships that illegally enter the province's waters in 2013, the latest Chinese effort to protect the South China Sea.
Under a set of regulation revisions the Hainan People's Congress approved on Tuesday, provincial border police are authorized to board or seize foreign ships that illegally enter the province's waters and order them to change course or stop sailing.
The full texts of the regulations, which take effect on Jan 1, will soon be released to the public, said Huang Shunxiang, director of the congress's press office.
Activities such as entering the island province's waters without permission, damaging coastal defense facilities, and engaging in publicity that threatens national security are illegal.
If foreign ships or crew members violate regulations, Hainan police have the right to take over the ships or their communications systems, under the revised regulations. 
The next day, a Reuters report from Jakarta interviewed Surin Pitsawan, secretary-general of ASEAN, and came up with: ASEAN chief voices alarm at China plan to board ships in disputed waters. 
The Reuters article occasioned a concerned post by James Fallows at the Atlantic magazine's website: "The Next Global Hot Spot to Worry About".  Agence France-Presse's lede eschewed nuance and accuracy to push the "PRC restricting freedom of navigation" hot button:
China has granted its border patrol police the right to board and turn away foreign ships entering disputed waters in the South China Sea… 
Then it was the turn of the New York Times on December 1 to deliver an anxiety upgrade: "Alarm as China Issues Rules for Disputed Area".  Manila Times added a serving of gasoline to the fire: "Chinese Police to Seize Foreign Ships in Spratlys".  The Indian Express evoked the Hainan regulations in its coverage: “Ready to Protect Indian Interests in South China Sea: Navy Chief”. 
The reliably unreliable Foreign Policy magazine website (which recently elevated artist-provocateur-Twittermaster Ai Weiwei to its list of 100 top world thinkers while ignoring the determinedly thoughtful, imprisoned, and Twitter-deprived Nobel laureate Liu Xiaobo) outsourced its Hainan Coast Guard coverage to an "It's the end of the world!" commentary titled "Will China Go to War in 2013?" from the conservative American Enterprise Institute. It proposed the foreign policy prescription:
Washington needs to make clear in the strongest possible terms that freedom of navigation won't be interfered with under any circumstances, and that the US Navy will forcibly prevent any ship from being boarded or turned around by Chinese vessels. 
Thankfully, the Obama administration did nothing of the sort. As reported by the New York Times, it simply stated:
"All concerned parties should avoid provocative unilateral actions that raise tensions and undermine the prospects for a diplomatic or other peaceful resolution."
This was probably in response to a careful and informed reading of the news reports concerning the new coastguard regulations, coupled with the understanding that the Chinese coastguard's area of responsibility is within the PRC's 12-mile (19.3 kilometer) coastal waters immediately contiguous to the various pesky islands (the wide open spaces of the South China Sea within the PRC's notorious nine-dash line fall under the purview of the Maritime Surveillance Force).
The target of the regulations is not vessels exercising freedom of navigation to transit China's claimed exclusive economic zone, so the World War III hysterics of the American Enterprise Institute were apparently misplaced.
M Taylor Fravel, a professor of political science at the Massachusetts Institute of Technology, contributed an analysis to The Diplomat which concluded:
[T]he actions outlined above are all concerned with Chinese territory or territorial waters – not the much larger maritime areas that press accounts have suggested. This is, moreover, consistent with the duties of the China’s public security border defense units that are the subject of the regulations. 
The PRC government belatedly got on the case, clarifying that the Hainan coastguard regulations had nothing to do with impairing the free navigation of foreign vessels transiting the South China Sea. On November 30, Xinhua reported that the PRC Foreign Ministry had addressed the anxiety over the coastguard's declaration of its right to stop and board foreign vessels that illegally enter its waters:
"China highly values free navigation in the South China Sea," Hong said. "At present, there are no problems in this regard." 
In this context, I would voice the opinion that "the PRC threat to freedom of navigation in the South China Sea" is a canard that the United States happily encourages in order to claim relevance in the otherwise remote reaches of the Pacific Ocean. The majority of traffic passing through the area is going to and from China, and if the PRC wished to commit economic suicide by shutting down shipping in these waters, it could do so largely by closing its own ports. Japan has exhaustively researched the strategic vulnerabilities of the Malacca Strait/South China Sea route and determined that they could be bypassed at the significant but not fatal cost of a 10% increase in shipping costs (super-large ore carriers destined for Japan already avoid the South China Sea and transit the Sunda Strait on the east side of the island of Indonesia). I leave it to experts in the field to determine whether world peace – or even the access of Vietnam and the Philippines to the international trade regime – would be fatally compromised by the unlikely event of absolute Chinese interdiction of third-country marine traffic through its claimed exclusive economic zone in the South China Sea. The PRC recognizes freedom of navigation for transiting vessels as an absolute red line that should not be crossed (if there are any doubts, I suggest that interested readers explore the PRC's long-standing and vociferous opposition to the US promotion of the Proliferation Security Initiative, which is designed to allow transiting vessels to be stopped and boarded by the naval forces of do-gooder nations in search of nefarious cargoes). In any case, if the PRC wishes to engage in piracy of transiting ships and trigger a global economic and security crisis, the heavy lifting will not be done by the Hainan Coast Guard. Fallows kindly posted some points I made concerning the import of the new regulations, which I reproduce here:
1. They are part of an upgrade/clarification of coastguard regs throughout China. Media reports show that, for instance Hebei and Zhejianghave also issued new regulations at the same time.
2. It appears their target is nationalist demonstrators from neighboring nations intent on island-related mischief. The main purpose of the new regs is to establish a clear public policy allowing for the coastguard to take action against people who try to land on the islands or sail around the islands and [irritate] the PRC (like the Taiwanese and Hong Kong demonstrators did to Japan around the Senkakus). I'm assuming that's the reason why the coastguard announced it is not going to permit any "hooliganism" inside China's claimed territorial waters (a catch-all term for activity without a clearly identified legitimate purpose, according to the PRC and in this case probably includes spraying coastguard vessels with fire hoses, hotdogging, etc.).
3. So the new regs forbid crossing borders or entering ports without permission; illegal island landings; messing with facilities on islands China claims; propaganda that violates China's sovereignty or national security. The regs are written not to impinge on lawful freedom of transit. The coastguard is only supposed to go after ships that illegally "stop or drop anchor" while transiting.
4. I think the reason why the Hainan regulations were given such prominence is because the PRC wanted to put the Philippines and Vietnam on notice that sending out nationalist armadas/landing parties to contested islands would elicit an escalating response from the Chinese. Going after demonstrators in an organized, legalistic way (instead of ad hoc reactive response) is a relatively cheap and easy way for the PRC to assert and demonstrate effective sovereignty of the areas it claims. One could call this escalation, and/or an attempt to set clear ground rules to help avoid conflict.
5. I see the intent of the regulations as written is to promote the PRC's idea of routine, lawful maritime enforcement. It will be interesting to see how energetically this is spun as "PRC violates freedom of navigation".
Though Japan was prepared this time around, typically, not every coastguard patrol boat has a police officer on deck, which effects the speed with which maritime violators are handled. For starters, the coastguard isn't allowed to make arrests. They have to wait for the police to arrive, a considerable time sink given the distance to the remote islands. But a new bill that passed in Japan's lower house last week could beef up the coastguard's powers so they can make arrests even when they don't get the luxury of a heads up. …
The biggest change would give the coastguard the authority to deal with crime – such as illegal entry or vandalism [emphasis added] – on isolated islands in the absence of police officers. Under current law, the Japan coastguard have to stand by until the police arrive.
That's what happened back in 2004 – the last time Chinese protesters successfully landed on the island. The activists enjoyed the craggy beaches for a whole day before they were arrested even though the coastguard had spotted the activists before they landed in the early morning hours. Besides telling them to leave, the coastguard lacked the authority to do much else. The police arrived by helicopter in the late afternoon.
The bill would also give the coastguard another means to prevent the landings. It would be allowed to order intruding vessels to leave its territorial waters without having to first inspect the boats, which can be tricky if multiple vessels enter Japan's space at the same time. 
One might wonder if the PRC government was paying attention. Answer: yes. From Chinese news agencies on August 30:
Japan's House of Councillors passed on Wednesday a bill designed to allow the Japan Coast Guard to respond swiftly to such incidents as foreigners' illegal landing on remote islands in the country. 
Well, well, well.
It looks like an accurate headline for the Hainan kerfuffle should have been: "PRC Copies Japanese Upgrade of coastguard Powers to Prevent Island Incursions". In this context, it should be noted that vis-a-vis Vietnam, the PRC's predicament in the South China Seas is similar to that of Japan's in the East China Sea: it has effective control of contested islands that the other party might be interested in challenging through some unofficial populist/nationalist expedition.
In the East China Sea, Japan gave its coastguard more powers to deal with obstreperous demonstrators trying to land on the Senkaku/Diaoyu Islands. In the South China Sea, the PRC wants to pre-empt nationalist chest-thumping by Vietnam over the Paracels/Spratlys.
As for the Philippines, after it took the risky step of dispatching its navy to detain eight Chinese vessels for illegally harvesting conch in the Scarborough Shoal (and made the unwise decision to flaunt its coup by releasing a photograph of the hapless fisherman standing atop their ill-gotten shellfish), it reorganized and upgraded its nascent coastguard in April 2011and issued new regulations clarifying its responsibilities, including:
Power or clear authority to board and inspect all types of vessels, watercraft and off-shore floating facilities to enforce all applicable laws, to include the Revised Penal Code, while within the country's maritime jurisdiction. 
So maybe the most accurate headline would have been: "PRC Follows Lead of Japan and the Philippines in Clarifying Coast Guard Powers". Nevertheless, in the matter of the Hainan Coast Guard regulations, the Philippine Department of Foreign Affairs (DFA) chose to shoot from the hip. It issued a strident statement denouncing the threat to freedom of navigation it imputed to the Hainan announcement, also implying that its duties do not include picking up the phone and talking to its opposite numbers in the PRC or, for that matter, reading the newspapers carefully and critically before making its views known:
The Department of Foreign Affairs (DFA) said over the weekend that China's reported plan to interdict ships that enter what it considers its territory in the South China Sea is a violation of the United Nations Convention on the Law of the Sea.
Because of these reports, coming mostly from the media, the DFA said it would like China "to immediately clarify its reported plans to interdict ships that enter what it considers its territory in the South China Sea".
"If media reports are accurate, we are specifically concerned with the information that foreign vessels illegally entering the waters under the jurisdiction of Hainan province, which China claims to include virtually the entire South China Sea under the 9-dash line, can be boarded, inspected, detained, confiscated, immobilized and expelled, among other punitive actions," the DFA said in a statement.
It added that "this planned action by China is a gross violation of the Declaration on the Conduct of Parties in the South China Sea [DCC], international law, particularly Unclos.
"[It is also] a direct threat to the entire international community, as it violates not only the maritime domain of coastal states established under Unclos, but also impedes the fundamental freedom of navigation and lawful commerce."
The DFA said this planned action by China is illegal and will validate the continuous and repeated pronouncements by the Philippines that China's claim of indisputable sovereignty over virtually the entire South China Sea is not only an excessive claim but a threat to all countries.
"If media reports are accurate, the law deserves international condemnation by Asean, our international partners and the entire community of nations," the DFA added. 
The Philippines, unfortunately, is the odd man out in the Asian security equation because of its financial and political woes, and its attempts to raise the alarm concerning the new Hainan regulations seem to have fallen on deaf ears.
Meanwhile, the PRC and Japan are engaged in a major buildup of their non-naval maritime forces in order to establish facts on the ground (or waves, if you will) and demonstrate effective control of the islands they claim. From the Chinese side, state media reported:
China is preparing itself to deal with complicated marine disputes. On July 24, Sansha city, Hainan province, the country's newest city, was established on Yongxing Island to administer the Xisha, Zhongsha and Nansha islands and their surrounding waters. Another 36 inspection ships are expected to join the China Marine Surveillance fleet by 2013. 
From the Japanese side, if one wants to put the full price tag on the national purchase of three of the Senkaku Islands, don't stop at the declared price of 2.05 billion yen (US$26.1 million). The figure is more like 19 billion yen, ($250 million), once one includes the spectacularly fattened budget for the Japanese Coast Guard, as the Wall Street Journal reported in October 2012:
The bulk of the money approved Friday will be used to purchase four 1,000-ton patrol vessels, three 30-meter long patrol boats, and three helicopters, as well as finish up a 350-ton patrol vessel. Some 2.1 billion yen will be used for equipment such as digital image transmission systems – gear that allows helicopters to transmit images to headquarters.
These purchases are part of a plan to replace old vessels and "build up a stronger class of players," Kondo said. Although the new vessels may be assigned to different parts of Japan, "there is no question they will be dispatched to the Senkaku area" and will contribute to the facilitation of a smoother and larger-scale patrol system, he said. 
Heightened PRC "assertiveness" in the South China Sea is not the only trend at work. To take a page from European history, what is going on could be described as "the enclosure of the commons" by the PRC and Japan: the incremental extension and institutionalization of exclusive control over resources that were once exploited in common or were simply too unimportant to be contested. From the standpoint of perceived equity, especially to less well-heeled players like the Philippines and Vietnam, this process is unfair and highly undesirable. However, the fact that these land-and-sea grabs are conducted using the rhetoric of law enforcement and using police forces and police regulations (even as national sovereignty chest-thumping persists) promotes stability by establishing a civilian firewall to handle disputes before the military officially engages. I would speculate that this is not an entirely welcome development for the United States, as moves and countermoves by Japan and the PRC create a viable de facto security regime in the Asian seas, one that is increasingly less reliant on the US military presence. As the PRC fine-tunes its maritime, diplomatic, and image-management tactics, expect more unwelcome news in the future.
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