Codifying Water and Reshaping Orders

ContemplationsDepartments

PRC Aggression In East, South China Seas

Dr. NGUYEN THANH TRUNG AND LE NGOC KHANH NGAN

The People’s Republic of China’s (PRC’s) Maritime Traffic Safety Law (MTSL) took effect September 1, 2021, requiring all foreign vessels entering Chinese territorial waters to notify maritime authorities, carry required permits, and submit to Chinese command and supervision. This comes after the Chinese government passed a law in February 2021 that authorizes the China coast guard (CCG) to use force on foreign vessels infringing on Chinese sovereignty. Both laws have serious implications for the international order. In addition, they infringe upon provisions of the United Nations Convention on the Law of the Sea (UNCLOS) that grants states the right of passage without requiring permission from the coastal state’s government.

The PRC’s codification of disputed waters has been building up to its current expansive stage for three decades. The 1992 Law on the Territorial Sea and Contiguous Zone also caused angst among states by violating UNCLOS provisions that define the baselines for measuring the territorial sea and other maritime zones. The PRC applied the straight baseline method, connecting basepoints between several islands far from the Chinese coast, and inflated its resulting territorial sea and exclusive economic zone (EEZ), infringing upon the rights of other nations to use those waters as allowed by international law.

Chinese domestic legislation that goes beyond what is allowed by international law creates opportunities to advance the PRC’s territorial goals through coercive means — at the expense of the territory and sovereignty of regional states. Article 12 of the coast guard law allows the CCG to protect Chinese sovereignty, maritime interests, artificial islands, and facilities and construction in waters claimed by the PRC. The CCG can also demolish foreign buildings, structures, floating devices constructed on the seas, islands and reefs under its jurisdiction, according to Article 20 of the law.

The MTSL empowers the Chinese Communist Party (CCP) to further control activities in its waters by dictating the categories of foreign vessels that must provide their information when navigating and berthing in pilotage zones. This means the CCP could define pilotage zones in disputed areas, even within other claimants’ EEZs.

The MTSL and coast guard law are more than isolated violations of international law — they serve a broader ambition of bolstering the PRC’s claims by using its own judicial processes.

The PRC’s approach relies on vaguely defined legal terms to interpret statutes as needed. Article 74 of the coast guard law defines “waters under Chinese jurisdiction” to include “other waters,” a term that likely refers to disputed waters and those the PRC controversially claimed in the 1992 Law on the Territorial Sea. The new maritime law, meanwhile, is ambiguous as to how harshly, broadly or whether the new legislation will be enforced and over what geographic area. 

Regionally, the PRC wants to reset the order that has been in place for decades, and its domestic legislation is an important component of its efforts to shape maritime rules and norms. The coast guard law is arguably an imminent threat to countries involved in disputes with the PRC in the East and South China seas. The law strengthens the argument that the PRC wants to establish a legal basis to justify physical confrontation on the seas.

In practice, Beijing has been increasingly adopting an offensive crouch. With its growing economic and military power, the CCP can impose its domestic law on the areas it controls, regardless of whether they are legally within its jurisdiction. With its military expenditure reaching U.S. $252 billion in 2020, China has turned its naval fleets and disguised militia vessels into behemoths to outclass regional navies and law enforcement agencies. In this context, forcing vessels from smaller nations to comply with the law does not seem a hard task for Beijing, raising alarm among regional states and the rules-based international community.

Dr. Nguyen Thanh Trung is director of the Saigon Center for International Studies (SCIS) at the University of Social Sciences and Humanities, Vietnam National University, in Ho Chi Minh City. Le Ngoc Khanh Ngan is a research fellow at SCIS. This article originally was published September 27, 2021, on the Center for Strategic and International Studies’ Asia Maritime Transparency Initiative website. It has been edited to fit FORUM’s format.

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