Earlier this year, China’s Maritime Safety Administration promulgated new regulations for foreign vessels ‘passing through or operating in’ it’s Territorial Sea. Under these Regulations, “operators of submersibles, nuclear vessels, ships carrying radioactive materials and ships carrying bulk oil, chemicals, liquefied gas and other toxic and harmful substances are required to report their detailed information upon their visits to Chinese territorial waters”. The new Regulations came into effect on 01 September 2021 and as per the guidelines and procedures vessels must “report the name, call sign, current position, next port of call and even estimated time of arrival to Chinese authorities”. A Global Times commentary notes that these Regulations will “better ensure the safe passage of vessels carrying radioactive materials, bulk oils, chemicals, and a host of other supplies”.

The new Regulations have attracted international attention amid concerns that “the new rules are only expected to further increase tension if China strictly attempts to enforce them in the disputed waters of the South China Sea and the Taiwan Strait”. There are at least three reasons for these apprehensions.

First, from a legal point of view, under Article 3 of the 1982 United Nations Convention of the Law of the Sea (UNCLOS), States can claim Territorial Sea not exceeding 12 nautical miles, measured from baselines which is to be determined from the low-water line along the coast. Also, under 1982 UNCLOS, ships are entitled to “innocent passage’ so long it is in “conformity with this Convention and with other rules of international law” and is “not prejudicial to the peace, good order or security of the coastal State. Article 6 of China’s 1992 Law on the Territorial Sea and Contiguous Zone holds that foreign ships for “non-military purposes” enjoy the right of innocent passage through the territorial sea but foreign vessels must obtain prior permission for entering the territorial sea.

However, foreign ships for “military purposes shall be subject to approval by the Government of the People's Republic of China for entering the territorial sea of the People's Republic of China”. This has been an issue of contestation between the US and China and has manifested in strong objections from China to US Navy’s FONOPs particularly in the South China Sea. The US has dismissed China’s expansive claims in the South China Sea and has aggressively pursued its FONOPs. During this year, there have been six FONOPs – two in the South China Sea and four through the Taiwan Straits, though the latter is an international Strait, through which vessels are allowed ‘transit passage’. Under the 1982 UNCLOS, States that lie astride the Strait can only regulate navigational and other aspects of passage.

Interestingly, India has a similar regulations with regard to war vessels of foreign counties and national Regulations requires “prior consent for military exercises or manoeuvres in its exclusive economic zone or continental shelf”. It recently encountered a similar situation early this year with the US Navy. It made an unusual announcement that “USS John Paul Jones asserted navigational rights and freedoms approximately 130 nautical miles west of the Lakshadweep Islands, inside India’s exclusive economic zone, without requesting India’s prior consent, consistent with international law,”; the US also claimed that India’s practice is “inconsistent with international law”. Needless to say, it invited sharp reactions from New Delhi but the situation was diffused through diplomatic channels.  

It is important to mention that the US has not ratified the 1982 UNCLOS and therefore it does not have “access to the dispute settlement system” enshrined in the 1982 UNCLOS; in a way, it loses by “staying outside the convention”. These have been calls within the US to ratify the 1982 UNCLOS.

Second, is about the impact of new Chinese Regulations on the Gray Zone operations given its propensity to ‘not adhere to or abide by’ international law particularly the 1982 UNCLOS. Such fears emerge from Taiwan and Su Tzu-yun, the director of the Division of Defense Strategy and Resources at the Institute of National Defense and Strategic Research has noted that the new regulations “expand the scope of “gray zone” conflict” that could unfold into a “ticking time bomb”. China’s new Coast Guard Act that came into effect on 01 February this year, empowers the Chinese Coast Guard (CCG) with powerful ‘security and control measures’ with rights to take necessary actions to “restrain foreign military vessels and foreign vessels used for non-commercial purposes in waters under China’s jurisdiction from violating the laws or regulations of China” and is in contravention to the 1982 UNCLOS. It is unclear how aggressively and how widely the new law will be enforced at all.

Third relates to the Code of Conduct currently being negotiated between ASEAN and China. Last month, during the 11th East Asia Summit Foreign Ministers' Meeting, State Councilor and Foreign Minister Wang Yi alluded to “four respects” on the South China Sea issue and urged “non-regional forces to stop extending their hands to the South China Sea” ostensibly referring to the US. Wang also called mentioned that “early conclusion of a more binding Code of Conduct in the South China Sea is a new goal set by China and ASEAN countries” while “refraining from unilateral actions that aggravate tensions and widen differences, or using force or threat of force in particular”. However, it remains to be seen how the China’s new Coast Guard Act will be invoked and put intro operations in case a vessel “fails to report” in accordance with Maritime Traffic Safety Law of the People's Republic of China (2021 Revision).

Finally, China’s creditability on issues concerning South China Sea and its non-adherence to international law particularly the 1982 UNCLOS are discomforting to other claimant States who remain suspicious of China’s intentions to deliver on its commitments. Vietnamese Foreign Ministry spokeswoman Le Thi Thu Hang has reiterated strict compliance with the 1982 UNCLOS “when promulgating documents of domestic law related to the sea”.

Dr Vijay Sakhuja is Consultant Kalinga International Foundation, New Delhi.