Last week, Reuters reported that China is “considering revisions to its maritime safety law which would make foreign submersibles travel on the surface and report their movements to authorities when in China’s waters.” The news bulletin also reported that draft provisions would allow maritime authorities “to stop foreign ships entering Chinese waters if the ships are judged to be a possible cause of harm to navigational safety and order.”
A closer look at this report reveals that some, but not all, of the proposals simply incorporate legitimate rights enshrined in the U.N. Convention on the Law of the Sea (UNCLOS). Most reiterate legal claims already articulated in Chinese domestic legislation, such as prior notification for innocent passage in the territorial sea. In important respects, therefore, the law does not significantly depart from existing Chinese legal practice. Apart from the underlying legality, however, these changes suggest that Beijing is consolidating a putative legal basis for asserting its security interests and may be readying for more pronounced conflict in the South China Sea.
Updating China’s 1984 maritime safety law
Before proceeding to substance, here is a brief review of the status of these proposals. The Standing Committee of the People’s Congress, China’s supreme legislative body, passed the current Maritime Safety Law on September 2, 1983. It became operative on January 1, 1984—ten years before UNCLOS came into force and twelve years before China acceded to it. The State Council, China’s chief administrative authority, is seeking public comments on its proposed changes through February 14, 2017. These comments will be considered before a final rule is promulgated—meaning that any of its provisions could change, though radical departures are not anticipated. As it stands now, proposed changes include provisions for rescue at sea, maritime labor and safety standards, as well as what the State Council has termed six “refinements” for “protecting maritime rights.” Today, I will focus primarily on these six changes. For a complete copy of the draft law, see here.
Changes compatible with international maritime law
Only one of the six refinements (Article 55) regarding maritime rights is clearly compatible with UNCLOS. It provides that foreign vessels must obtain approval to enter China’s internal waters and ports. Internal waters are defined as all waters on the landward side of a state’s coastal baseline, meaning that they hug the coast quite closely. UNCLOS Article 25 states that the coastal state can establish conditions for admission to internal waters and ports, and so China is on a firm legal footing for asserting a right of approval for all vessels entering this zone.
Changes potentially compatible with international maritime law
Another provision (Article 52(1)) allows the Ministry of Transportation to designate and publicize “special maritime areas” of the territorial sea within which foreign vessels’ right of innocent passage would be suspended. UNCLOS Article 25(3) permits coastal States to suspend innocent passage only temporarily. While existing language could be interpreted as permitting only temporary suspension (暂停外国船舶的无害通过), it could be further refined to ensure compliance with UNCLOS (e.g., 临时暂停外国船舶的乌海通过).
Changes incompatible with international maritime law
The remaining proposed changes reflect existing Chinese legal practice, almost certainly do not comply with international maritime law, and are likely to provoke significant international pushback.
Three are problematic due to longstanding differences between Chinese law and international practice about whether warships must notify a coastal state before conducting innocent passage through the territorial sea. UNCLOS Articles 18 and 19 allow foreign vessels to “continuous[ly] and expeditious[ly]” travel through the territorial sea so long as they are not “prejudicial to the peace, good order or security of the coastal state.” China’s Law on the Territorial Sea and Contiguous Zone requires foreign military vessels to request permission for such passage on the theory that the presence of any warship is inherently prejudicial to peace and good order. The United States, and much of the international community, however, argues that “All ships, including warships, regardless of cargo, armament, or means of propulsion enjoy the right of innocent passage . . . for which neither prior notification nor authorization is required.”
Given this background, changes to the maritime safety law that, textually, seem to comply with UNCLOS are likely to become problematic upon implementation. A proposed rule granting Chinese officials the authority to prevent foreign vessels from transiting the territorial sea if they threaten maritime safety or order (Article 52(2)), for example, would likely be problematic on prior notification grounds. A second proposal allowing maritime authorities to stop and eject foreign vessels contravening Chinese law or regulations as they transit, operate, or are anchored within the territorial sea or internal waters would present a similar issue (Article 101). The same dispute is at play, finally, in the rule, alluded to by Reuters, requiring foreign submersibles to surface, fly their flag, and report to maritime authorities when transiting the territorial sea (Article 53). The first two requirements are permitted pursuant to UNCLOS Art 20. The United States and others, however, would object to the last requirement when submersibles are navigating under their understanding of innocent passage.
The last proposal highlighted by the State Council is more complex and poses more concerning implications for security in the South China Sea. It provides that maritime security agencies enjoy the right of hot pursuit in China’s “jurisdictional waters” (管辖海域) against vessels exhibiting a laundry list of behaviors, including nuclear powered vessels without proper documentation, vessels polluting the marine environment, and vessels “operating illegally” (Article 100). UNCLOS, however, only provides for rights and obligations in specific maritime zones, not “jurisdictional waters.” Indeed, the term “jurisdictional waters” is never used in the official Chinese language version of UNCLOS. So while it is true that states enjoy the right of hot pursuit to enforce their maritime laws, this right only applies to pursuit that begins in internal waters, the territorial sea, archipelagic waters, or the contiguous zone. Similarly, nuclear powered vessels must “carry documents and observe special precautionary measures” established by international agreements only during innocent passage through the territorial sea.
Finally, the State Council’s press release neglected to mention Chapter 10 of the Maritime Safety Law, which establishes financial and criminal penalties for a range of offenses. Most of these penalties do not distinguish between foreign and domestic vessels. More problematically, they also do not specify the maritime zones to which they apply. As such, and pursuant to Article 2, it is possible that these penalties could be extended to ships operating in “jurisdictional waters” far beyond what would be allowed under UNCLOS. Even more specific penalties are problematic. Article 118, for example, establishes a 300,000 to 500,000 RMB fine (approximately 43,616 to 72,693 USD) for foreign ships that transit the territorial sea, internal waters, or ports without first notifying Chinese officials.
Concerns for the South China Sea
China’s Supreme People’s Court has defined jurisdictional waters as including internal waters, territorial sea, contiguous zone, EEZ, continental shelf and “any other maritime areas under the People’s Republic of China’s jurisdiction.” Applying this definition to China’s proposed rules could allow Beijing to extend its articulation of hot pursuit and a variety of criminal penalties to vast maritime areas—including waters within the 9-dash line. The Philippines/China arbitral tribunal explicitly rejected attempts to extend sovereign and jurisdictional rights beyond the areas for which they were provided under UNCLOS. Such an expansion would also be contrary to the spirit of the China-ASEAN 2002 Declaration on the Conduct of Parties in the South China Sea, in which Beijing reaffirmed its “commitment to the freedom of navigation in and overflight above the South China Sea.” Acting on these newfound rights would add fuel to disputes with parties that claim sovereignty or jurisdiction over waters within the 9-dash line, stymieing any meaningful movement towards a more binding Code of Conduct in the South China Sea. And finally, it would certainly heighten existing conflict between China and a host of weighty naval powers (including the United States, Japan, and Australia) that operate in the South China Sea.
Beijing has not yet indicated when a final version of this law will be released.