Trespassers will be Prosecuted: China’s latest Billboard in the South China Sea

The new maritime regulations passed by the Hainan Peoples Congress to board, inspect, seize, deport or force ships to alter course out of areas within China’s claimed territorial waters as a part of the “Coastal Ship Frontier Defence of Law and Order Management Ordinance” signals a stepping up of the Chinese resolve to assert claims on disputed maritime zones. The regulation mentions that it applies to ships that enter the waters under the jurisdiction of Hainan ‘illegally’, specifically territorial waters. The regulations are to come into effect from 01 January 2013. Prima facie, the regulation appears to be applicable to the territorial seas. The ordinance mentions six occasions in which the Public Security Border Defence Authority could take action:

• Stopping or anchoring.
• Exit and entry to ports without approval or inspection.
• Landing on Islands.
• Destruction of coastal defence/production/living facilities on the Islands.
• Implementation of promotional activities (could be equated to propaganda) that infringe national sovereignty.
• Violation of other laws and regulations that threaten the coastal border public security management.

These ‘occasions’ apparently are intended to cover the passage of ships that are not ‘innocent’, hence the use of the word ‘illegally’ in the regulation. UNCLOS, as per Articles 17 to 19, covers the right of innocent passage. Interestingly all the occasions as per the new Chinese regulation are covered in Article 19 of UNCLOS. And according to Article 21 of UNCLOS, coastal states may adopt laws and regulations, in conformity with the provisions of UNCLOS and other rules of international law, relating to innocent passage through the territorial sea. Further, as per Article 25, the coastal state may take the necessary steps in its territorial sea to prevent passage that is not innocent. These aspects, in keeping with the letter and spirit of UNCLOS, are, however, deemed applicable to ‘undisputed’ areas that are internationally recognised as belonging to the coastal state. Therefore, the laying down of such occasions raises questions about China’s intent especially as it comes on the heels of a series of events in the recent past.

• China’s setting up of civil administration and military garrison on Sansha (Paracel Islands) in July 2012.
• Ongoing Diaoyu/Senkaku Island maritime stand off between China and Japan.
• China’s submission of baseline claim in respect of Diaoyu Islands in September 2012.
• ASEAN Ministerial meeting in July 2012 which produced no joint communiqué.
• ASEAN and EAS Summits in November 2012 resulting in no progress on the South China Sea dispute.
• Cutting of cables of a Vietnamese survey vessel by a Chinese fishing boat on 30 November 2012.

The Paracel Islands are placed by China under Hainan province while the Diaoyu Islands come under Taiwan province (considered the 23rd province of China). A point of interest is that fishing vessels from the provinces of Zhejiang and Fujian fish in the waters near these islands. Another point of interest is that a similar ordinance was also passed by the Zhejiang Provincial People’s Congress. Since both sets of islands are disputed with Vietnam and Japan respectively, the passing of these ordinances could be a harbinger to the hard ‘on site’ actions that China could employ in its claimed ‘disputed’ territorial seas.

Hainan’s issuance of the ordinance has invited the ire of several nations, with Vietnam responding by planning to send its own naval patrols to safeguard its interests in the region. The ordinance also raises questions about the freedom of navigation and specifically passage rights of ships in disputed areas not internationally recognised as belonging to any nation. The issue as to who will decide if the passage is innocent has always remained a grey area. Therefore, nations could reserve the right to employ rules of engagement to thwart an ‘illegal’ boarding or not to comply with an ‘illegal’ request to alter course out of such disputed waters – a fact that was mentioned by the Indian Navy chief Admiral DK Joshi in his Navy Day interaction with the media. China’s response cautioning India against any “unilateral” attempt to pursue oil exploration in the disputed South China Sea is an echo of an earlier statement issued in September 2011 when China warned Indian companies

“to stay away from the South China Sea, as aggressive overseas explorations from Indian side in the highly sensitive sea, over which China enjoys indisputable sovereignty, might poison its relationship with China, which has been volatile and at times strained.”

The issuance of these ordinances will not only add to the growing tensions in the disputed areas, specifically the South China Sea, but also add to the growing suspicions about Chinese intent. The moot question is “who will stand up to China if it adopts strong arm tactics and enforces the ordinances in disputed areas?” As former US President Dwight D Eisenhower said, “History does not long entrust the care of freedom to the weak or the timid.”