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New maritime law could inflame China, Asian nations South China Sea tiff

LETTERS
By Agencies | September 20th 2021

The Arleigh-Burke class guided-missile destroyer USS Barry conducts operations in the South China Sea in 2020. [AFP]

A new Chinese legal requirement demands that multiple classes of foreign vessels traversing waters claimed by Beijing must provide detailed information to state authorities and take aboard Chinese pilots.

The new maritime law, which came into legal force today (September 1), threatens to inflame South China Sea disputes pitting China and Southeast Asian nations and stoke already rising tensions with the United States in the contested waters.

On August 27, China’s Maritime Safety Administration said in a statement that five categories of foreign vessels, namely submersibles, nuclear-powered vessels, ships carrying radioactive materials, ships carrying bulk oil, chemicals, liquefied gas or other toxic substances, as well as vessels that may endanger China’s maritime traffic safety, fall under the law.

Foreign vessels will be required to provide information including their ship names and numbers, recent locations, satellite telephone numbers and dangerous goods, according to the statement.

If their automatic identification systems do not work properly, they will need to report to China’s maritime authorities about their locations and speeds every two hours until they leave the country’s territorial waters, the statement said. 

At face value, these are not necessarily problematic provisions – unless the definition of “Chinese territorial waters” is interpreted to include nearly all of the South China Sea, as claimed in its wide-reaching and hotly contested nine-dash line.

The new rules were first made public on April 29 this year after the Standing Committee of the National People’s Congress amended the Maritime Traffic Safety Law (MTSL), which was established in September 1983.

In April, Xinhua reported that foreign ships found to be potentially hazardous to marine traffic safety would be required to report themselves before sailing through Chinese waters under the revised law. Ships found in violation will be ordered to vacate, the report said.

The state-run Global Times said on August 29 that the law was a sign of stepped-up efforts to safeguard China’s national security.

Song Zhongping, a TV commentator, told the newspaper that the Maritime Safety Administration had the power to dispel or reject a vessel’s entry into Chinese waters if the vessel is found to pose a threat to China’s national security.

The report did not name any specific foreign country or sea area that will be affected but analysts say it is clearly aimed at the United States and its allies.

According to the UN Convention on the Law of the Sea (UNCLOS), territorial waters are defined as the 12 nautical miles (22.2 kilometers) of sea extending from terrestrial territory, with the “right of innocent passage” reserved for vessels moving through territorial waters in a manner that does not threaten the security of the coastal state. 

But Su Tzu-yun, director of the Division of Defense Strategy and Resources at the Institute of National Defense and Strategic Research in Taiwan, has noted Beijing defined its territorial waters much more broadly to include “internal waters, territorial sea, contiguous zones, exclusive economic zones and continental shelf, as well as other sea areas under its jurisdiction.”

He pointed out that Beijing also amended its Coast Guard Law in February to empower its marine police to use weapons.

According to Chapter VI of the Coast Guard Law, China’s Coast Guard officials may use hand-held weapons if a foreign vessel “illegally” enters Chinese claimed waters and refuses to stop after being instructed. Moreover, they may use airborne weapons if China’s law enforcement vessels or aircraft come under attack.

It is unclear how aggressively, how widely or indeed whether the new law will be enforced at all, and if so over how wide of a geography.

China claims nearly all of the South China Sea under its nine-dash line, a claim that was rejected by an arbitral tribunal at The Hague in July 2016. Despite those claims, China has not attacked any US Navy vessels that regularly enter the contested maritime region in the name of “freedom of navigation.” 

A shipping trade organization based in London that has researched the law and that spoke to Asia Times on condition of anonymity said there is clearly interest in the issue in the shipping industry.

Traditionally, pilots are only taken above when a ship is approaching harbors or when entering nationalised waterways such as the Suez or Panama canals.

But under China’s new revisions, pilotage may be required in locations far from Chinese coastal waters – indeed, even in areas claimed by other states.

“Where a vessel voluntarily applies for pilotage, the pilotage institution shall provide pilotage services,” the law states.

Pilots are required on vessels, “navigating, berthing or shifting berths” in “pilotage zones,” the law says.

It’s still unknown where China envisages those “pilotage zones.” According to Act 2 of the MTSL, the law applies to “navigation, berthing, operations and other activities relevant to the maritime traffic safety in the sea areas within the jurisdiction of the People’s Republic of China.”

An analytical article, “China’s Revised Maritime Security Law,” in International Law Studies clarifies the attendant risks in terms of both geographic breadth and Chinese demands.

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