A Chinese proverb says “when reading, do not let a single word escape your attention, one word may be worth a thousand pieces of gold.”
In the recent incident involving China’s coast guard in Indonesian waters, it seems that not only a single word, but instead numerous words of the 1982 U.N. Convention on the Law of the Sea have escaped the attention of the Chinese.
A Chinese fishing vessel, the Kway Fey 10078, suspected of fishing illegally in Indonesia’s Exclusive Economic Zone, was boarded by Indonesian maritime patrol personnel on March 20.
This operation was carried out in accordance with Article 73 of UNCLOS where a coastal state can take measures, which include boarding, inspecting, arresting and carrying out judicial proceedings to exercise its sovereign rights over its EEZ.
Both vessels and crew members may be subject to arrest. The Chinese authorities’ response of hindering Indonesia from arresting the vessel in Indonesia’s own EEZ was clearly a sign of disrespect toward Indonesia and UNCLOS. An attitude unworthy of a country as big as China.
Foreign Minister Retno LP Marsudi expressed Indonesia’s concern about the incident. Indonesia protested against China for breaching Indonesia’s sovereign rights, hampering Indonesia’s law enforcement in its EEZ, and intervention in Indonesian territorial waters.
China’s Foreign Ministry has denied the allegations. Three points of their statement deserve evaluation under international law. First, China claims that the incident took place in traditional Chinese fishing grounds. Second, the Chinese fishing vessel was carrying out normal operations. Third, China demanded Indonesia release the detained fishermen immediately.
China seems to have developed a recent habit of letting others get confused about their statements. “Traditional fishing grounds” does not have an unequivocal meaning in UNCLOS.
Therefore, it could not be understood what China was specifically referring to, particularly as the claimed area is in Indonesia’s EEZ as our authorities claim.
Although UNCLOS addresses “traditional fishing rights,” it only applies to the provisions concerning archipelagic waters of an archipelagic state.
The term used by China instead indicates a connection to their claim of the “nine-dash line” that covers the entire South China Sea, and which includes their claimed area of fishing rights.
They assert that China is entitled to historic rights in that area.
Hence, China’s claim appears to mean that the “traditional fishing grounds” within Indonesia’s EEZ is part of the unilaterally declared nine-dash-line.
This sounds like a claim on Natuna waters by China. Yet the Chinese Foreign Ministry reiterated that Natuna belongs to Indonesia. Regardless of the confusing statement by China, it is very clear that their claim of “traditional fishing grounds” has no basis under UNCLOS.
The second point that was not elaborated on by China was the “normal operation” of the Chinese fishing vessel. Again, UNCLOS does not recognize this term. It recognized ships to be in a “normal mode” while traversing through straits used for international navigation or in archipelagic sea lanes, which grants these ships a slightly greater freedom than in an “innocent passage.” When traversing in normal mode and enjoying the transit passage, ships are not allowed to conduct fishing activities.
Therefore, one cannot help but wonder what China means by “normal operation.” Does it refer to fishing in Indonesia’s EEZ, or navigation through the waters?
In their statement, China demanded Indonesia release the fishermen immediately. Under Article 73 of UNCLOS, the coastal state is only obligated to release the arrested fishermen upon the posting of reasonable bond or other security.
China has not done so, so there is no obligation for Indonesia to fulfill this request. Moreover, as has been done since the beginning of President Joko “Jokowi” Widodo’s term, Indonesia will bring the matter to the courts to decide.
The UNCLOS serves as the constitution of the oceans to which both Indonesia and China are parties.
It is therefore imperative for both countries to apply the provisions in good faith. The statement by China on the Natuna incident suggests either a lack of proper understanding of the convention, or simply a lack of good faith.
Since the inauguration of President Jokowi in 2014, Indonesia has forged closer relations with China. However, this does not mean that Indonesia tolerates violations of its sovereign rights.
To maintain a good partnership, it would be beneficial if China showed clearer use of terms regarding issues related to the law of the seas.
By Gulardi Nurbintoro
Gulardi Nurbintoro is an LPDP awardee and a doctoral candidate of juridical science at the University of Virginia. He wrote this for the Jakarta Post, a paper published in Indonesia. — Ed.
(The Jakarta Post/Asia News Network)
