Ashutosh Anand & Himanshu Kumar Pathak[i]

Introduction

China’s new Maritime Traffic Safety Law, 2021 (MTSL), aimed at monitoring and supervising foreign vessels’ entry and exit into what Beijing refers to as “Chinese territorial waters,” took effect on September 1[1] , 2021. The decision is believed to have far-reaching implications on the transit of commercial and military vessels in the Taiwan Strait and the East China Sea along with the disputed South China Sea. It is likely to exacerbate tensions of China with the United States, China’s neighbours in the vicinity, and other stakeholders[2] .

According to the new law, nuclear vessels, submersibles, ships transporting radioactive substances, and ships transporting bulk oil, liquefied gas, chemicals, and other toxic and hazardous items are all mandated to provide detailed information while entering Chinese territorial waters. Vessels that jeopardize China’s marine traffic safety must disclose their identity, call sign, current location, next port of call, and projected arrival time. The identification of every harmful product onboard and the deadweight of the cargo will be sought.

China has historically been practising[3]  the classic move of “lawfare” in disputes regarding territorial sovereignty by enacting hegemonic legislations of its own. It furthers its policy[4]  with its four noes, i.e., no acceptance, no participation, no recognition, and no implementation, towards international laws, to which China is itself a signatory. While other stakeholders to the South China Sea are contemplating resolving the dispute [5] and establishing free navigation in the region, China dismisses the entire idea of the dispute in the first place. Hence, it has created a deadlock for the stakeholders.

The Chinese government brought forth many laws – as discussed later – to bolster its grip on the South China Sea; however, the new law has leapt many steps ahead and granted extensive control to the Chinese authorities.

Background

According to researchers and observers, the earliest dashed-line map predates the establishment of the People’s Republic of China, having been issued in 1947 by the Republic of China’s Nationalist government. Ipso facto, the abovementioned incident strengthened the historical Chinese claims on the South China Sea, including all the waters, islands, seabeds, and airspace.

Later, the Chinese ‘Law on the Territorial Sea and the Contiguous Zone’ of 1992 stated that foreign military ships required prior authorization to enter Chinese territorial waters, submarines had to transit over the surface of the water, and vessels transporting dangerous substances had to have proper documents and take safeguards in managing their cargo. The new set of rules providing for surveillance of international vessels across most of the categories must be seen as a violation of the 2016 final Arbitration award passed by the Permanent Court of Arbitration in the dispute between the Philippines and China.

Although China did not participate in the proceedings, the arbitration award ex-parte explicitly provided that the uninhabitable reefs and islands in the South China Sea cannot have their own exclusive economic zones and continental shelf, which is still binding on both parties, as both of them are signatories to the United Nations Convention on Law of Seas (UNCLOS) agreement, under which, the arbitration proceedings were registered. Moreover, the court determined that the South China Sea is a “semi-enclosed sea” as specified by the UNCLOS, which is a body of water that is partly or largely surrounded by land features. With this position comes the intention that coastal states will work together on matters ranging from commercial exploitation to conservation. This is an essential idea since it signifies that the South China Sea is a joint and shared maritime space by reference to the UNCLOS definition. Consequently, the award refuted the Chinese territorial claim as per the traditional nine-dash line as unlawful and in violation of the definition of territorial waters per the UNCLOS agreement.

Nevertheless, China contends that the verdict went against the idea of state consent and was tried ultra vires, with evident flaws in the fact-finding and application of the law, and the award was illegal and without any binding power.

China’s Perverted Stratagem

In accordance with the above-discussed facts, this new set of maritime regulations can be seen as another step in the name of “lawfare” after the introduction of the China Coast Guard Law (CCGL). The same was passed in January 2021, and as per its Article 21 provides for forceful eviction. In addition, Article 22 of the CCGL warrants the use of weapons against warships and foreign vessels that infringes on China’s territorial sovereignty at sea. These provisions can be seen as severe violations of Articles 32, 95, and 96 of the UNCLOS, which provide for “innocent passage” of warships and military vessels along with immunizing them against such forceful measures by any other country.

Apparently, the maritime regulations deal with the permission and authorization of the passage of vessels of certain broad categories, along with sharing of details of the vessels and their content by the flag bearing countries. However, it is doubtful that the actual aim of the regulations is such, as one of the by-products of the regulations is the reiteration of the definition of territorial waters as per China’s historic rights, which have been declared unlawful [6] by a majority of international laws.

The repeated iteration of China’s claim on the South China Sea through “lawfare” can be seen in the light of its will to normalize and settle the claims which the 2016 Arbitration Award refuted. Interestingly, against the expectations of implementing the award, China, in a critical analysis of the award, reported it to be erroneous. Further, the clause providing for authorization of innocent passage post mere sharing of information about the content of the vessels, unlike the countries which partly ban and regulate the passage of vessels carrying substances potentially harmful to sea, cannot be seen as a preventive step against sea pollution. Besides, when China has already been held responsible for overfishing and sea pollution due to military developments as per the 2016 Arbitral award, the fact that these rules are for the prevention of sea pollution can draw serious doubts.

The timing of implementing these regulations draws further attention as the US has announced [7] that it will, along with its allies, carry out Freedom of Navigation Operations in the South China Sea. Freedom of navigation operations, or FONOPs, are periodically conducted by maritime powers such as the United States, Australia, and the United Kingdom to combat attempts by coastal states to limit access to the waters unjustly.

Conclusion

Thus, the two laws introduced together can be seen as a perfect complement to each other as the MTSL would provide for an instrument of provocation, and the CCGL would provide for the reaction to the provocation. For the US, the move can be seen as an attempt to corner it in the various potential multipart alliances for the resolution of the South China Sea dispute, especially when while being the flag bearer of freedom of navigation, it is not a signatory of the UNCLOS.

While the agreement clarified the majority of international maritime rules, it allowed for certain questions involving military activity unsettled, including “innocent passage” by warships in territorial waters.

According to the UNCLOS, a foreign military warship can sail within 12 nautical miles of another country if it takes a direct path and does not perform military maneuvers, whereas several states, on the other hand, differ about what constitutes an innocent passage.

Therefore, the disputes, present and contemplative, demand that the international fora urgently and sternly object to China’s cunning and manipulative “lawfare” tactics. Not doing so would result in a conscious acceptance of the Chinese policy, including the Nine-Dash Lines and the Chinese claim to the entire South China Sea. Overlooking these tactics may catalyze similar Chinese endeavors, which can sabotage the balance and free navigation.

[i] Ashutosh Anand & Himanshu Kumar Pathak are Second Year students of the BA. LLB(H) course at National University of Study and Research in Law, Ranchi, India.