While states remain focused on combating Covid-19, security challenges to the existing international order have not vanished.
On September 1, China’s Maritime Traffic Safety Law (MTSL) came into force, 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 China’s passage of a new law in February which 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) which grant states the right of innocent passage without requiring permission from the coastal state’s government.
This is not the first time China has passed legislation that goes against international norms and infringes on the sovereignty of other states. China’s codification of disputed waters has been building up to its current expansive stage for around three decades. The 1992 Law on the Territorial Sea and Contiguous Zone also caused angst among other states, especially those whose interests are compromised by the legislation’s Article 6: “to enter the territorial sea of the People’s Republic of China, foreign military ships must obtain permission from the Government of the People’s Republic of China.”
This same law also violated UNCLOS provisions on defining the baselines from which the territorial sea and other maritime zones are measured. China applied the straight baseline method, connecting basepoints between several islands far from the Chinese coast. By defining baselines far beyond those allowed by the terms of UNCLOS, China 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 for it to advance its territorial goals through coercive means—at the expense of the territory and sovereignty of regional states. Specifically, Article 12 of February’s Coast Guard Law allows the CCG to act to protect Chinese sovereignty, maritime interests, artificial islands, and facilities and construction in waters claimed by China. 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 also empowers China to further control activities in its waters by dictating the categories of foreign vessels which must provide their information when navigating and berthing in pilotage zones. This has provoked anxiety among rival claimants in the South China Sea, since the pilotage zones in the MSTL are not clarified. China claims sovereignty over the vast majority of the South China Sea, meaning that, under the MTSL, China could define pilotage zones in disputed areas, and even within other claimants’ EEZs.
Establishing forward-leaning legal positions to secure national interests without fighting is one component of China’s “three-warfares” strategy. It officially became part of China’s playbook with specific long-term objectives in 2003. The MTSL and Coast Guard Law are more than isolated violations of international law—they serve a broader ambition of bolstering China’s claims by utilizing its own judicial processes.
One distinctive aspect of China’s legal approach is the vagueness of legal terms. The resulting ambiguity creates ample room for China to interpret the statutes as needed. Article 74 of Chapter 11 of the Coast Guard Law defines “waters under Chinese jurisdiction” to include “other waters”, a term that likely refers to disputed waters and those China has controversially claimed in the Law on Territorial Sea in 1992. Furthermore, in the new maritime law, it is ambiguous how harshly, broadly, or whether the new legislation will be enforced, and if it would, over what geographic area. A notice for foreign ships about the new maritime law issued on September 1 was also unclear when it said relevant laws, regulations rules, and provisions would be applied to deal with vessels failing to report to Chinese maritime administration.
Any state can be both violator and upholder of international law at the same time. And what China does matters either way: beyond its status as a permanent member of the UN Security Council, it also wants to be an order-maker. Regionally, China 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 new Coast Guard Law is arguably an imminent threat to other countries which are involved in disputes with China in the East and South China Seas. Now that China is imposing an amended maritime law imposing additional restrictions and regulations on foreign ships, it only strengthens the argument that China 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, China can easily impose its domestic law on the areas it controls, regardless of whether they are legally within its jurisdiction. With its military expenditure reaching $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 very hard task for Beijing.
In sum, while China’s legal warfare is not accompanied by good reason or proper justification, it does come with military power and the threat of economic pressure. Thus, while its effects may not be felt immediately, it has appropriately raised the alarm among regional states and the rules-based international community.