Were shots fired last month by the Korean Coast Guard (KCG) against two Chinese vessels caught illegally fishing in Korean waters a violation of international law? The short answer is no. Yet continuing clashes between Chinese fishing vessels and the KCG should be of concern to all countries in the region due to the complex problems they pose.
On November 1, 2016, the KCG opened fire on two Chinese boats during a standoff with about 30 other Chinese vessels fishing illegally in Korean waters. The Chinese vessels had been warned to stop fishing in Korean territorial waters, and tried to ram the KCG vessel in response. The KCG responded by firing their ship-mounted machine guns into the air. This was the first time the KCG had reportedly used this type of countermeasure on Chinese fishing boats, but the initial warning shots did not deter the fishermen. The KCG eventually seized the two Chinese vessels after opening fire on the ships.
This was the latest in a string of recent clashes between the KCG and Chinese boats operating in Korean waters. In June 2016, the KCG conducted joint operations with the United Nations Command to respond to illegal fishing by Chinese fishermen near the mouth of the Han River and the military demarcation zone between the two Koreas. In September, an incident in Korean waters led to the death of three Chinese fishermen, who were accidentally killed when the KCG, in the process of seizing a Chinese ship, threw grenades that sparked a fire. In early October, a KCG vessel was rammed and sunk by Chinese fishing boats just outside of Korea’s exclusive economic zone (EEZ).
After this series of incidents, the South Korean government vowed to implement tougher countermeasures against Chinese vessels operating illegally in Korean waters. The KCG deputy chief, Lee Choon-jae, said after the October KCG vessel sinking that “We will actively respond to Chinese fishing boats that obstruct justice by using all possible means if needed, such as directly hitting and gaining control of those Chinese fishing boats, as well as firing common weapons.” In this latest clash, the KCG made good on its promise. The ROK government also vowed to strengthen other countermeasures such as confiscating and scrapping illegal fishing boats, detaining Chinese fishermen, raising arrest deposits and/or fines for ship owners, and creating artificial reefs to block vessels engaged in this illegal activity.
Why do conflicts between Chinese fishermen and ROK maritime forces continue to happen?
The problems primarily stem from the often indivisible nature of maritime resources, the complex application of international legal regimes and bilateral fishing agreements, and longstanding territorial disputes in Northeast Asia. Since China and South Korea are both parties to the United Nations Convention on the Law of the Sea (UNCLOS), this legal instrument should theoretically determine how maritime boundaries are drawn between the two countries, as well as how much control they can exert over relevant maritime zones. Lastly, the UNCLOS regime defines and limits the duties and responsibilities that coastal states have over marine resources in their waters.
As it stands, UNCLOS presents multiple problems for the coastal states bordering the relatively narrow Yellow Sea. UNCLOS allows coastal states to claim an exclusive economic zone (EEZ) up to 200 nautical miles from their coastline, creating overlapping EEZ claims between China and the two Koreas. China and South Korea also both use different methodologies to calculate their maritime boundaries which could give rise to serious disputes.
To deal with many such issues and promote cooperation in fishing and maritime resource management, China and South Korea entered into a bilateral fisheries agreement in 2001 (Korean version). While the bilateral agreement has helped the two countries avoid conflict over the delimitation of their EEZs, there are still significant gaps that are not covered. The most important of these is the failure to deal with illegal, unreported, and unregulated (IUU) fishing in the agreement and a failure to delineate treatment of the special prohibited zone between North and South Korea.
From a legal perspective, the ambiguities in UNCLOS and the fisheries agreement (as well as the special nature of the Northern Limit Line between the two Koreas) may be one reason why clashes continue to occur. The ambiguities make it difficult for South Korea and China to successfully carry out enforcement activities to stop the illegal fishing.
Most of the illegal fishing occurs in South Korea’s territorial waters or in its EEZ. When illegal fishing occurs in Korean waters, South Korea is well within its rights under UNCLOS and the bilateral fisheries agreement to inspect, seize, detain, and extract fines from the offending fishing vessels.
However, South Korea has often been unwilling or incapable of carrying out harsh enforcement measures against Chinese fishing vessels. There are many reasons for this, including a lack of resources to fight illegal fishing, fear of disrupting ROK-China relations, and legal provisions that do not allow for the imprisonment of the offending Chinese fishing vessels and their crews.
Additionally, Chinese fishermen take advantage of the standoff between North and South Korea to fish illegally in the special prohibited zone near the Northern Limit Line. The potential for third-party interference by North Korea in these disputes, or the use of North Korean waters by Chinese fishermen to evade capture, adds a complex dimension to an already intractable problem.
Are the ROK’s more aggressive countermeasures warranted?
The November incident may signal South Korea’s shift towards harsher enforcement actions and policies. China has publically protested South Korea’s actions and has claimed that the KCG acted disproportionately to the moves made by the Chinese ships and crew. China has also said that it is not necessary to detain the fishing vessels by force.
While the Chinese government may not be able to dispute the seizure of vessels fishing illegally in Korean waters, they may assert that excessive force in self-defense or hot-pursuit of the Chinese vessels violates the principles of international law. The ROK government is likely to maintain that the countermeasures were necessary or proportionate to the actions taken by Chinese fishermen. As the KCG spokesperson said earlier in November, shots were taken against the vessels because “[t]he safety of our own Coast Guard members was at risk.” In addition to ramming and sinking KCG ships in the past, Chinese fishermen have previously been known to use tools or unconventional weapons to prevent inspection and arrest by Korean police.
Unless China can build a stronger case that the KCG uses excessive force in these situations, legal arguments will probably not succeed. However, China is likely to use diplomatic and economic pressure to encourage the ROK government to soften its enforcement approach towards Chinese vessels. As argued in a previous article, narrow legal and political approaches are not likely to yield positive long-term solutions to the complicated issues at the heart of ROK-China illegal fishing disputes. The two countries should start tackling these problems through comprehensive and cooperative approaches that target not only the obvious symptoms of conflict but also the root causes of illegal fishing in the China Seas.
Some initial recommendations to deal more comprehensively with these issues can be made. First, strengthen the legal obligations of both coastal states and flag states through negotiation of additional international treaties and codes of conduct. Second, consider negotiating an addendum to the ROK-China fisheries agreement that would include additional explicit provisions on illegal fishing and acceptable limits for enforcement mechanisms for both parties. A third proposal could involve the creation of a multilateral fisheries regime or institution in Northeast Asia that could be tasked with addressing not only bilateral issues between China and the ROK, but disputes between China, Japan, Russia and the two Koreas. The inclusion of North Korea would likely be extremely difficult given the country’s current geopolitical stance and its failure to join UNCLOS, but this might be necessary to adequately deal with longstanding maritime issues among all the countries in the region. Fourth, China and South Korea could engage in more regular meetings of the ROK-China Joint Fishery Committee established by the bilateral fisheries agreement and seek to institutionalize cooperation through relevant government ministries and relevant stakeholders. Finally, the ROK and China should continue to jointly pursue cooperation to address and prevent further damage to the marine environment caused by pollution and over-exploitation of resources. This would include stronger efforts to deal with domestic demand and supply of seafood products as well as measures to crack down on illegal fishing in the East and South China Seas.