On 29 April, 2021, the 28th session of the 13th NPC Standing Committee (NPCSC) of the People’s Republic of China (PRC) adopted the revised Maritime Traffic Safety Law of the People’s Republic of China (MTSL) which came into effect on the 1st of September 2021. MTSL is the primary law regulating maritime traffic safety in the sea areas within the jurisdiction of the PRC.
In conformity with China’s aggressive posturing in the South China Sea (SCS) arena wherein it is striving to establish its dominance, the revised MTSL threatens to disturb the fragile peace in the area by a classic manoeuvre called “lawfare”, which simply means the use of laws as weapons of war. The law in question is aimed at establishing Chinese jurisdiction in the disputed South China Sea area along what is classified by China as the “Nine-Dash Line”.
The 1982 United Nations Convention on the Law of Seas (UNCLOS) is the international treaty which established the legal framework for all marine and maritime-related activities. China ratified the same in 1996, and is therefore bound by it. On a closer look, the revised MTSL is found to be contrary to UNCLOS and therefore, contrary to the established international law itself.
The 1982 United Nations Convention on the Law of Seas (UNCLOS) is the international treaty which established the legal framework for all marine and maritime-related activities.
The first and the most significant aspect of the revised MTSL is the application of the enactment, which expands it from “coastal wasters” to “sea areas under the jurisdiction of the People’s Republic of China”. The revised enactment contains a number of vague terms such as this one. This has been an intentional exercise on part of the PRC as it allows it to posture itself according to the situation at any given time.
The most suitable interpretation of “sea areas under the jurisdiction of the People’s Republic of China” would be in accordance with China’s Law on the Territorial Sea and the Contiguous Zone which stipulates that:
“The [People’s Republic of China]’s territorial sea refers to the waters adjacent to its territorial land. And the PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China. The PRC’s internal waters refer to the waters along the baseline of the territorial sea facing the land.”
What these words actually represent is the nine-dash line which runs across the South China Sea. The same claim of jurisdiction had been unfounded by the South China Sea arbitration tribunal in 2016 as the said claims were contrary to the UNCLOS.
The reason for the significance of this change is that as per UNCLOS, the sovereignty of coastal states extends only up to their territorial sea, which measures only up to 12 nautical miles from the baseline. China on the other hand by way of such terminology, claims jurisdiction over majority of the South China Sea. The repercussion of this expansion of applications are immense on the fragile peace in the region.
Another controversial provision of the MTSL is one which deals with mandatory pilotage. Mandatory pilotage refers to the maritime norm under which it is compulsory for a vessel to be operated and controlled by a licensed pilot unless the vessel itself falls under the category of exempted ones. This is normally required in the territorial waters of the coastal states. Like all coastal states, China has mandatory pilotage requirement as well.
The revised MTSL imposes mandatory pilotage requirements on: –
- Foreign-flag vessels
- Nuclear-powered ships, ships carrying radioactive materials, and ultra-large oil tankers
- Bulk liquefied gas ships and bulk dangerous chemical ships that may endanger port safety
- Vessels whose length, width, and height are close to the limits of the corresponding navigable channel conditions
Although compulsory pilotage is normally associated with territorial and coastal waters of states, keeping in mind the application of the MTSL, mandatory pilotage in the present case is highly problematic. The reason for the same is that provisions of MTSL are inconsistent with international law, particularly with the UNCLOS, under which “coastal states cannot impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage”. Further, application of the compulsory pilotage requirement under MTSL for foreign ships navigating beyond China’s territorial sea has no basis in international law and even endangers the principal of freedom of navigation.
Mandatory pilotage refers to the maritime norm under which it is compulsory for a vessel to be operated and controlled by a licensed pilot unless the vessel itself falls under the category of exempted ones.
Additionally, MTSL does not differentiate between commercial and government vessels. This is important because as per UNCLOS, “warships and government vessels operated for non-commercial purposes beyond the territorial sea have complete immunity from the jurisdiction of any state except the flag state”, meaning the state in which the vessel in question is registered or licensed. Hence, if China ends up enforcing this specific provision which is plainly inconsistent with international law, may well end up becoming a flashpoint with the flag states, especially the United States (US).
It is a fundamental principle of international law that “ships regardless of flag, cargo, or means of propulsion, enjoy the right of innocent passage through the territorial sea for which neither prior notification nor authorisation is required”. Innocent passage is the custom by which vessels of all states are “allowed to navigate through territorial waters of coastal states as long as the passage is “innocent” or not prejudicial to the peace, good order, and security of the coastal state”.
If China ends up enforcing this specific provision which is plainly inconsistent with international law, may well end up becoming a flashpoint with the flag states, especially the United States (US).
On the international custom of innocent passage, MTSL imposes a prior notification condition on certain classification of foreign vessels on their entry and exit. These vessels include: –
- Submersibles
- Nuclear-powered ships
- hips carrying radioactive materials or other toxic and hazardous materials; and
- Other vessels that may endanger China’s maritime traffic safety as prescribed by Chinese laws or regulations, or the State Council
The reason that this provision is problematic is because UNCLOS contains an expansive list of activities that are considered non-innocent and not giving prior notice is not one of them.
As per UNCLOS, coastal state may adopt laws and regulations relating to innocent passage regarding reduction and control of pollution, regulation of maritime traffic, preservation of the marine environment, and safety of navigation but at the same time, coastal states cannot impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage.
As per international agreements, states may even require vessels which are nuclear powered or carrying hazardous/ toxic substances to use designated sea lanes or observe precautionary methods. However, states are not allowed to impose requirement for prior notice for even these vessels, which is exactly what MTSL has done.
The aggression of China and inability of US and its allies to resolve the dispute in a timely manner has led to severe undermining of international laws.
Lastly, the MTSL lays down that in case of violation of Chinese law by government vessels used for non-commercial purposes—including warships—which are using innocent passage in seas under jurisdiction of China, “the relevant laws and administrative regulations” would be applied to them. The pattern of vague and ambiguous provisions continues here as well. It is not clear as to what these laws and administrative regulations involve. Under UNCLOS, government vessels operated for non-commercial purposes are accorded complete immunity from coastal jurisdiction and if any such vessel engages in any prohibited activity in the territorial sea of any coastal country, coastal country can only direct the vessel to leave its territorial sea.
The PRC by way of the revised MTSL has left room for interpretation as to what actions it may resort to in case any such vessel or a warship engages in what it may classify as “violate the laws or administrative regulations of the People’s Republic of China” and in “sea areas under the jurisdiction of the People’s Republic of China”, therefore, uncertainty looms large in the seas.
Conclusion
This is not the first time China has resorted to “lawfare” to assert its dominance in the region. In January 2021, the Chinese Coast Guard (CCG) was given the power to fire on illegal foreign vessels in “waters in Chinese jurisdiction”. The aggression of China and inability of US and its allies to resolve the dispute in a timely manner has led to severe undermining of international laws. The argument that international law is not a law in any real sense, but as Austin postulated, just positive morality due to lack of enforcement, has never been more evident than today. What remains to be seen is whether China does indeed act upon the above-mentioned provisions. If it actually does follow through, the region which is already a highly unstable, may plunge into even greater turmoil.
