China’s new regulations allowing the seizure of foreign vessels acting illegally in its claimed territorial sea in the South China Sea may accord with international law, but they might also open the South China Sea disputes to compulsory arbitration.
ONCE AGAIN China has stirred up a “hornets’ nest” in the South China Sea. New regulations recently approved by the Hainan’s People’s Congress to board and search vessels in China’s claimed territorial sea in the South China Sea have met with an angry response from other countries bordering the sea.
Despite protests by other countries, the new regulations are most likely in accordance with international law. Technical detail is lacking so far about the regulations although it seems probable they only refer to the twelve nautical mile territorial sea and not to the wider exclusive economic zone. If this is the case, then they might be seen as a legitimate expression of a country’s sovereignty over its territorial sea. The vexed issue causing the angry response from China’s neighbours is that the new regulations extend to features in the South China Sea that are claimed by other countries.
Enforcement In Territorial Sea
A country is perfectly entitled to board and arrest a vessel acting illegally in its territorial sea or its internal waters. The only exceptions to this principle are, first, if the vessel is exercising the right of innocent passage and proceeding directly through the territorial sea. But if such a vessel engages in “non-innocent” activities, then it is open to boarding and arrest by the coastal state. Non-innocent activities include fishing, conducting research or causing serious pollution, as well as acts that are prejudicial to the peace, good order or security of the coastal state, including for example, interfering with the communications of the coastal state, or any acts of propaganda aimed at affecting the security of the coastal state.
China’s new regulations are believed to define six actions that could lead to the seizure of a foreign vessel, including entering ports without approval and conducting acts of propaganda that threaten national security. All these actions could be accepted as either “non-innocent” or prejudicial to the interests of the coastal state provided of course that the sovereignty of the coastal state over the waters in question is not in dispute.
The second exception to the principle of boarding and arresting a vessel in the territorial sea is if it concerned a government vessel engaged on non-commercial service. In this case it has sovereign immunity to actions by the coastal state which is only entitled to direct it to leave the territorial sea.
In summary therefore, and despite some media reporting, China is not necessarily setting itself its own set of rules for protecting its sovereignty in the territorial sea. Its new regulations for boarding and arresting vessels in its territorial sea appear to be in accordance with international law.
Perhaps unintentionally with the new regulations, China may have opened itself up to compulsory dispute settlement procedures set out in the 1982 UN Convention on the Law of the Sea (UNCLOS) and entailing binding decisions on the parties to a dispute. China has always said that it would not accept compulsory arbitration of its maritime sovereignty disputes. This is acceptable as UNCLOS allows countries to opt out of the compulsory procedures in respect of disputes involving maritime boundaries and military activities. China in fact made such a declaration when it ratified UNCLOS.
The International Tribunal for the Law of the Sea (ITLOS) in Hamburg is the independent judicial body established under UNCLOS to adjudicate disputes arising out of the interpretation and application of the Convention. Since the tribunal’s establishment, many of the cases brought before it have involved disputes over the arrest or detention of foreign vessel by a coastal state.
A current case before ITLOS involves the detention by Ghana of Argentina’s naval sail training vessel ARA Libertad. The tribunal will be testing the strength of sovereign immunity as a defence against arrest and detention by a coastal state.
Although the legal situation is far from clear, it may be the case that should China seize a foreign vessel under its new regulations for acting illegally in the territorial sea of a disputed feature in the South China Sea, the flag state of the vessel could bring an action before ITLOS disputing China’s action. This might have the inadvertent consequence of opening up arbitral consideration of China’s sovereignty over the feature in question.
The situation in the South China Sea continues to become both more contentious and more complex. It also continues to be made even more confusing by some media reporting that paints a more serious picture of a situation than it actually is. This would appear to be the case with China’s new maritime regulations. Rather than being a gross new provocation by China, they may well be a legitimate expression of sovereignty that does not change the fundamental nature of the disputes in the South China. They are hardly worth the storm of protest and critical commentaries that have resulted.
It is unfortunate that countries on all sides of the South China Sea disputes tend to over-react to apparent provocation by other parties. This over-reaction is also fuelled by nationalistic public interest built up by the more extreme, and often misinformed, media reporting of a situation. Over-reaction to apparent provocations should be avoided at all cost. They just lead to a spiral of reaction and over-reaction with a ‘lose-lose’ outcome for all parties.
Hainan’s New Maritime Regulations: A Preliminary Analysis
Hainan’s People’s Congress recently approved new regulations for the management of public order for coastal and border defense. Part of the regulations authorizes public security units to inspect, detain or expel foreign ships illegally entering waters under Hainan’s jurisdiction. As a result, initial reporting and analysis indicated that the regulations may provide a basis for China to challenge freedom of navigation in the vast disputed waters of the South China Sea.
As the full-text of the regulations have not been published, such conclusions are, at the very least, premature. Moreover, based on information that is currently available, the regulations will likely focus on the activities of foreign ships and personnel within Hainan’s 12 nautical mile territorial seas and along Hainan’s coast, including its islands. The basis for this conclusion is analysis of a partial summary of the regulations that Xinhua published.
The regulations govern the activities of Hainan’s public security border defense units (gong’an bianfang jiguan). This refers to China’s public security border defense troops, which are part of the People’s Armed Police but fall under the Ministry of Public Security and include the Maritime Police (haijing, also referred to as China’s Coast Guard). These public security units are tasked with maintaining public order in China’s border and coastal areas, including port security and immigration. However, they are not responsible for maintaining law and order within China’s Exclusive Economic Zones (EEZ) or any maritime zone beyond the 12 nautical mile territorial sea. The China Marine Surveillance force under the State Oceanic Administration holds the primary responsibility for these duties along with the Maritime Safety Administration and Fisheries Law Enforcement Command.
The details of the Hainan regulations indicate that the conditions under which public security border defense units are authorized to engage foreign vessels is limited. Here’s the key paragraph from Xinhua:
The paragraph defines six actions that could warrant boarding or other interference with foreign vessels: 1) vessels that stop or anchor within the 12 nautical mile territorial sea (linghai) or “try to pick a quarrel,” 2) vessels that enter ports without approval or inspection, 3) the illegal landing on islands under the administration of Hainan, 4) the destruction of coastal defenses or production facilities on islands under the administration of Hainan, 5) violations of national sovereignty or propaganda activities that threaten national security, and 6) other actions that threaten the management of public order in coastal and border areas.
The only maritime zone mentioned specifically in the regulations is China’s 12 nautical mile territorial sea, where it enjoys more or less the equivalent of sovereign powers under the UN Convention on the Law of the Sea. There is no specific reference to boarding foreign vessels in other zones such as the EEZ, though apparent language from the preamble refers broadly to “waters under Hainan’s administration” that could include areas in the South China Sea beyond 12 nautical miles. Nevertheless, the actions outlined above are all concern 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 impact on disputed areas in the South China Sea is likely to be minimal in the short to medium-term. In the regulations, the reference to the islands under Hainan’s administration indicates that they could be used to justify or rationalize the interference with the navigation of foreign vessels in territorial waters around islands and other features that China either occupies or claims in the South China Sea. However,the Chinese navy and not public security border forces are responsible for the defense of the islands that China holds. Whether public security units are granted a greater role in disputed areas is a key indicator to track.
In addition, Hainan is not the only Chinese province to pass new regulations governing public order in coastal and border areas. Within the past week, Zhejiang and Hebei have also passed similar regulations. Importantly, Hebei is not adjacent to any disputed maritime areas. This suggests a broader effort among coastal provinces to strengthen the management of public order in border and coastal areas and not a specific focus on disputed areas, though the regulations are relevant as discussed above.
In sum, although the regulations establish a legal basis for Hainan’s public security border defense units to board or seize foreign vessels on or near disputed islands, they are unlikely to result in a major change in China’s behavior in the disputed waters of the South China Sea. Policing China’s EEZ is the responsibility of the China Marine Surveillance and the Fisheries Law Enforcement Command, not public security units. Nevertheless, given the applicability to disputed islands and adjacent territorial waters, China should clarify when and where these regulations apply.