Chinese maritime law is the latest move to flout UNCLOS

“Chinese maritime law is the latest example of ‘international law with Chinese characteristics’ because it flouts the United Nations Convention on the Law of the Sea (UNCLOS),” said Carlyle Thayer, professor emeritus at the University of New South Wales to Canberra at Australian Defence. Force Academy, said.

China announced that from September 1, five types of foreign ships (submersibles, nuclear-powered ships, ships carrying radioactive materials, those carrying bulk oil, chemicals, liquefied gas or other substances poisons, and “vessels likely to endanger the safety of China’s maritime traffic”) will be required to provide detailed information to its authorities when entering “Chinese territorial waters”.

Thayer said it falls under the Maritime Traffic Safety Law which China amended in April 2021.

It also states that the Maritime Security Administration (MSA) may deal with any foreign vessel that fails to report “in accordance with relevant laws, regulations, rules and provisions.”

The MSA has the right to order foreign vessels that “threaten the security of China’s internal or territorial waters” to leave Chinese waters and exercise the “right of hot pursuit” if they fail to comply.

“In other words, the new Chinese law is a form of law designed to elevate Chinese domestic law above international law and reinforce China’s claim to ‘indisputable sovereignty,'” Thayer said.

A Chinese Coastguard vessel patrols the disputed Scarborough Shoal on April 5, 2017. Photo by Reuters

Lucio Blanco Pitlo III, a research fellow at the Asia-Pacific Pathways to Progress Foundation in the Philippines, said the new maritime security law was part of China’s growing desire to impose its jurisdiction, including in disputed waters.

The law would impact both military and commercial vessels, he said.

“The geographic scope of the law and the categories of foreign vessels that will be affected raise serious concerns.”

Dr. Nguyen Thanh Trung, director of the Center for International Studies at the University of Social Sciences and Humanities in Ho Chi Minh City, said the new law is one of the elements of the strategy of the three wars of China: the war of public opinion, the psychological war and the legal war.

The law also creates “legal authority” for China to use force whenever necessary, he said, stressing that even if China does not immediately apply the law, that does not mean that “punitive measures” will not be imposed in the future.

China will not give up its interests in the South China Sea, he said.

Dr Satoru Nagao, Fellow (non-resident) of the Hudson Institute, USA, said the law makes it easier for the Chinese Coast Guard to use weapons, a big deal because it makes it easier to climb of a situation.

In the past, countries around China, especially Japan, used their coast guard instead of navy because they were trying to prevent an escalation in a naval battle, but China changed the law several times. occasions and with it the situation, he said.

This first emerged in 2018 when China changed the law to allow the Central Committee of the Communist Party of China to control both the navy and the coast guard, allowing China to escalate skirmishes at the level of coast guard in naval battles at all times, he stressed. .

Denying foreign military access to the East China Sea and the South China Sea allows China to wield more influence over Taiwan, which is located just 100 miles off China’s coast and between the two seas, he said.

The Coast Guard will try to push back the foreign military, and if that fails the Navy will come, he said.

China’s deployment of nuclear submarines in the South China Sea has created a very dangerous situation that threatens to spiral out of control, he warned.

If China wants to establish a deterrent, it must ensure its submarines are not detectable by foreign ships, planes or sensors, he said.

“That’s why China is pushing foreign militaries out of the South China Sea and the East China Sea.”

Ambiguity, pressure on coastal countries

Thayer said it was not legal for China to place restrictions on foreign ships and vessels, including submarines, that exercise the right of innocent passage through its territorial waters.

This is guaranteed by UNCLOS. Innocent passage must be “continuous and rapid” and not be “prejudicial to the peace, good order or security of the coastal State”.

UNCLOS also states that coastal states “shall not impede the innocent passage of foreign vessels through the territorial sea”.

However, it imposes restrictions on military vessels performing innocent passage. For example, foreign military vessels may not “exercise or train with weapons of any kind” or launch, land or embark “any military craft”.

Submarines must transit on the surface and fly their national flag, but China cannot require such ships and foreign vessels to report their call sign, current position and next port of call.

Thayer said the reference to “submersible operators” has led to speculation that it includes unmanned underwater platforms designed for intelligence, surveillance and reconnaissance. Chinese underwater platforms of this nature have been discovered in Indonesian waters.

Chinese territorial waters extend 12 nautical miles from the coast at low tide.

China’s maritime traffic safety law applies to maritime areas under China’s jurisdiction, but “what are China’s territorial waters is uncertain,” Thayer said.

Therefore, there is a risk caused by ambiguity in China’s delimitation of its territorial waters, he said.

In the case of the Paracel Islands, for example, China has drawn straight baselines around these features which are excessive in some areas, and the US Navy disputes these claims with its so-called “freedom of navigation” patrols.

China consolidates all the features scattered across the South China Sea by enclosing them in straight baselines and treating them as a single unit. Features include rocks and shoals at low tide. All waters bounded by these baselines are considered “internal” waters by China and all waters outside constitute “territorial seas”.

However, it has not officially declared any baselines around its seven so-called artificial islands in the Spratlys. In other words, China has yet to formally delineate its claims for a territorial sea.

The claims are illegal under international law, but China could challenge and harass any foreign vessel, whether commercial or military, that passes through these waters.

Thayer said countries like the United States and Australia have already announced that they will continue to exercise their right to freedom of navigation.

Dr Trung said the Littoral and other related countries would face the risk of arbitrary taxation by China. The illegal status would have a greater impact on smaller coastal countries in the region where China’s military influence and economic pressure can be felt very clearly, he said.

Therefore, Southeast Asian leaders should think carefully before conducting surface and underwater military drills that could provoke China in Chinese-occupied waters, he said.

Expressing a similar concern, Pitlo said that while the new Chinese law could be seen as a measure largely aimed at major naval powers, it also affects the energy lifeline of neighboring coastal states like those in Southeast Asia. East, Japan and Korea.

“Compliance with notification and pilotage requirements, particularly in disputed waters, can be seen as acquiescence to this new attempt to consolidate control over strategic maritime hotspots.”