Should Indonesia take China’s ‘historic fishing rights’ seriously?

Author: Sourabh Gupta, Institute for China-America Studies

Indonesia–China maritime ties are once again embroiled in rising tensions over traditional Chinese fishing practices occurring in the exclusive economic zone (EEZ) adjacent to Indonesia’s Natuna regency. This time, as many as 63 trespassing vessels have been spotted across 30 locations within Indonesia’s waters, backed by the presence of Chinese coast guard ships. China’s encroachment is not a matter that can or should be taken lightly.

Indonesia President Joko Widodo walks past a national flag during his visit at a military base in Natuna, near South China Sea, Indonesia, 8 January 2020. (Photo: Laily Rachev/Courtesy of Indonesian Presidential Palace/Handout via Reuters).

Beijing claims that the South China Sea waters are its ‘traditional fishing grounds’ and the vessels are exercising their ‘legal and legitimate’ rights. Jakarta insists contrarily that it enjoys exclusive and untrammelled sovereign rights and jurisdiction over the North Natuna Sea waters and that the Chinese vessels are engaged in illegal poaching.

Jakarta is prima facie correct to assert that Beijing cannot enjoy any ‘historic rights’ — including traditional fishing rights — within the Natuna EEZ. The tribunal in Philippines v China judged that such rights were superseded in the EEZ of a foreign coastal state with the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS).

But the matter is not as clear-cut as many commentators would have us believe. Far from being preposterous, the concepts of ‘historic rights’ and ‘traditional fishing grounds’ sit comfortably within the four corners of international maritime law.

As the tribunal in Philippines v China itself observed, such rights belong to and are governed by the ‘other rules of international law’ that are preserved by the UNCLOS. So long as these traditional fishing rights ‘are exercised over a long period of time without interruption or opposition’, they can override conceptions of sovereignty, be exercised non-exclusively by artisanal fishermen of that vested foreign state, and do not require the consent of the coastal state for their exercise.

It was on this basis that the tribunal judged the territorial sea of the Scarborough Shoal — where China is the coastal state — to be the ‘traditional fishing ground’ of Filipino artisanal fishermen. Their access, as a matter of the right to these fishing grounds, was not contingent on China’s consent —although they do have to defer to Beijing’s regulatory prerogatives in these waters.

Where China’s current practices in the Natuna Sea depart from the tribunal’s ruling is that the ruling circumscribed this traditional fishing right to the territorial seas of the Scarborough Shoal. Exclusive economic zones of coastal states were deemed out-of-bounds from the exercise of this historic right. But even this zonal distinction is not settled law, as shown in two notable cases where international tribunals have ruled otherwise.

In Mauritius v United Kingdom, the court observed that the ‘other rules of international law’ (which govern traditional fishing rights and are preserved by the UNCLOS) apply ‘for all intents and purposes equivalently’ across the territorial seas and the EEZ. The court in Eritrea v Yemen went even further and judged that the ‘traditional fishing regime … was not qualified by the maritime zones specified under the UNCLOS … and operates throughout those waters beyond the territorial waters of each of the Parties’.

A future court may pare back the Philippines v China distinction between the territorial sea and the EEZ, but China will be reluctant to cede this traditional fishing right in the interim, if at all. The way forward for Jakarta is to ensure the face-off is resolved and the encroachment reversed expeditiously and peacefully. Diplomacy and deterrence are of the essence.

As unwelcome as the situation is, undue alarmism is unnecessary. Jakarta should be attentive to the inferred claims that Beijing is not making in this instance. It is not challenging the territorial dispensation of the Natuna Islands. It is not contesting Indonesia’s sovereignty in the Natuna’s territorial sea. It is not claiming sovereign rights and jurisdiction in the Natuna’s EEZ, be it for commercial fisheries or oil and gas development purposes. China has never challenged Jakarta’s hydrocarbon rights in these waters, unlike in Manila and Hanoi’s EEZs. The latter cases spurred the judges in Philippines v China to strike down Beijing’s infamous ‘nine-dash line’ because it constituted, in their view, an infringing exclusive claim to sovereign rights and jurisdiction.

Yet even this limited and non-exclusively exercised traditional fishing right claim might be too much for Jakarta to countenance. It is fully within Jakarta’s rights to reject China’s claim, particularly in light of the rampant poaching by many states in its waters.

But there would be little harm in Indonesia sitting across the table and thrashing the issue out with its Chinese counterparts. Creative solutions could be on the anvil. In exchange for a nominal annual quota for its artisanal fishermen, the Chinese coast guard would cede its jurisdictional presence in Indonesian waters. Reciprocal access to Chinese waters could also be sought. The UNCLOS articles on semi-enclosed seas do enjoin bordering coastal states to coordinate the management, conservation and exploitation of the living resources of the sea.

On the 30th anniversary of the normalisation of diplomatic relations, both Jakarta and Beijing would be well-served by constructively and consensually addressing their maritime dispute.

Sourabh Gupta is Resident Senior Fellow at the Institute for China-America Studies in Washington DC.

A version of this article first appeared here in the Jakarta Post.

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