In a classic manoeuvre of what is called “lawfare”, China announced a new set of maritime regulations last week that require ships carrying certain types of cargo to provide detailed information to the Chinese authorities when transiting through Chinese “territorial waters”.
Though such demands by littoral states are not unusual, it does not take a genius to understand that this particular move is part of an ongoing Chinese project to establish its jurisdiction over the South China Sea by using Chinese laws and regulation. Neither is the use of “lawfare” to project a country’s goals. The US routinely uses what is called a “long-arm jurisdiction” to claim global authority of its laws and regulations as part of its exercise of projecting power.
An earlier 1992 Chinese law insisted that foreign military ships needed permission to enter the territorial waters, submarines needed to transit on the surface, and ships carrying toxic material had to have required documentation and take precautions in handling the cargo.
Now according to the Global Times, vessels from foreign countries, including submersibles, nuclear vessels, ships carrying radioactive materials, bulk oil, chemicals, LNG and other harmful substances, “are required to report their detailed information upon their visits to Chinese territorial waters”.
China’s claim in the South China Sea
In January 2021, the Chinese passed a new Coast Guard Law and in April and a revised Maritime Traffic Safety Law. There is a built-in ambiguity in this move, which matches with the uncertainties surrounding China’s maritime claims in the South China Sea.
The United Nations Convention on the Law of the Sea (UNCLOS) gives military or civilian ships the right of “innocent passage” through the territorial waters of another state. Territorial sea is defined as a belt of waters extending 12 nautical miles from the baseline of a coastal state. This “innocent passage” is defined as ships that pass straight through without stopping, any exercise or practice of weapons, collecting information, fishing and so on.
But subsequently, many countries have been concerned about smuggling, marine pollution and the dangers they faced by ships carrying hazardous cargoes. So, a number of countries like Canada, Pakistan and Portugal demand prior notification of such cargoes; Egypt, Iran, Malaysia and Yemen demand prior authorisation; and there are nations like Argentina, Nigeria and the Philippines which ban them.
China’s own definition of its territorial seas, put out by its Law on Territorial Sea and Contiguous Zone of February 25, 1992, notes that it includes waters adjacent to its mainland and its offshore islands, namely Taiwan, and Diayou (Senkaku), Pengshu, Dongsha (Pratas), Xisha (Paracels) and Nansha (Spratly) islands. Though not explicitly stated, the waters are as enclosed by the Nine Dash Line in Chinese maps. Of these, Pengshu and Dongsha are administered by Taiwan.
The Chinese control the Paracels which they seized from Vietnam in the closing days of the Vietnam war in 1975. Further south, control of the islands and rocks which comprise the Spratly islands group is divided among a number of claimants — the Philippines (11), Taiwan (2), Vietnam (29), China (7), Malaysia (6) and Brunei (1).
China’s legal ability to enforce its control
In recent years, many of these claimants have dredged the maritime features and created artificial islands. But the Chinese have gone further and turned many of them into full-fledged military facilities and asserted that the seas around them are “territorial waters”.
The problem for China is that as per the UNCLOS arbitration award of 2016 relating to the South China Sea, their territorial waters in the features of the Spratly islands they control are limited.
The 2016 award, passed in relation to a case brought up by the Philippines, declared that there were no real “islands” in the Spratly island group that could support habitation and claim territorial waters of 12 nautical miles and an exclusive economic zone of another 200 nautical miles.
There were a number of “high tide elevations” or rocks that showed above the high tide, but these could only generate a territorial sea of 12 nautical miles. Further, several features claimed by China such as the Mischief Reef, Second Thomas Shoal and Reed Bank were naturally under water and did not generate any territorial claim at all. Land reclamation or artificial construction would not change the legal regime or categorisation of the features.
The tribunal also found that China had occupied certain areas like the Mischief Reef and Scarborough Shoals, which fell within the exclusive economic zone (EEZ) of the Philippines.
Finally, the tribunal ruled that any claim for the waters of the South China Sea coming under the category of “historic rights” under UNCLOS were untenable and inconsistent with the international law. This put paid to the extensive claims that China implicitly made by drawing the so-called Nine Dash Line that enclosed most of the South China sea.
In essence, the legal ability of China to use its latest regulations to enforce its expansive claims is limited. That, of course, does not mean they will not attempt to do so.
US’s involvement in the South China Sea dispute
The Chinese saw themselves as latecomers in the South China Sea and forcibly evicted the Vietnamese from the Fiery Cross Reef in 1988 and the Philippines from Mischief Reef in 1995 and blocked its access to the Scarborough Shoal in 2012.
For the US which had always been patrolling close to Chinese waters, the South China Sea developments were an opportunity to challenge China and so beginning around 2012, it began to conduct what it said were naval operations aimed at ensuring the freedom of navigation of the South China Sea waters.
Actually, the whole issue of “freedom of navigation” is a bit of a red herring. So far, China has not sought to block any commercial traffic on the sea lanes of the South China Sea. Seven out of the 10 largest commercial ports are in China and some of the biggest shipping companies are Chinese and dependent on access to the sea lanes. As visible in the figure above, the bulk of the traffic goes to China and Hong Kong and so the Chinese are hardly likely to interdict it.
Initially, there were claims that $5.3 trillion of global trade passed through the South China Sea, but a detailed analysis by the US think tank Center for Strategic and International Studies found that the actual estimate for 2016 was more around $3.4 trillion, which constituted 21% of global trade, not 36% as earlier claimed.
The study also found that while 64% of China’s maritime trade went through the waterway, 42% of Japan’s did so. Just 14% of the US trade passed through the region.
There was another important component to the South China Sea equation. The Chinese undersea nuclear weapons capability is housed in submarines whose principal base is in the Hainan Islands. The Chinese subs do not intend to roam the world oceans, but be used from locations in the deep seas close to Hainan in what is called the “bastion” mode. Hence, there is considerable sensitivity to the US movements that take place in the name of “Freedom of Navigation Operations” (FONOPS).
For the US, the South China Sea represents a useful way of checking Chinese power. Regional countries have welcomed the US’s military presence because of Beijing’s bullying ways. But the US has been chagrined to find that while these countries benefit from the presence of US power, they are unwilling to join any coalition to confront China. As is well known, China is the ASEAN’s main trading partner.
So, the US has put its money down in the Quadrilateral Grouping (Quad) of extra-regional states like Japan, India and Australia. While Japan does have significant interest in the freedom of navigation in the South China Sea, a lot of its heavier traffic comes through the Lombok Strait.
As for India, as of 2019-20, just about 18% of its trade went through the South China Sea, but the bulk of it went to China. Fanciful claims that more than 50% of its trade goes through the waterway are simply not borne out by the figures. India’s trade with China topped $81 billion during this period, while the combined value of its trade with South Korea, Japan and Taiwan was half that figure, and to this add $34 billion for Hong Kong. India’s total global trade stood at $844 billion during that period.
India has another leverage against Chinese efforts to interdict our traffic — it can do the same to the China-bound traffic in the Andaman and Nicobar Islands area where it sits at one end of the Malacca Straits.
China is unlikely to back off from its expansive and ambiguous maritime claims. It is now seeking to work out a Code of Conduct with the other claimants, but it wants them to agree to a declaration that extra-regional powers are kept out of issues relating to the South China Sea.
But whether Beijing likes it or not, the arbitral award has been a dampener in its effort to consolidate its authority over the area through lawfare. Issues like the latest notification are more by way of being used as pinpricks rather than a useful means of expanding Chinese control.
Manoj Joshi is a Distinguished Fellow, Observer Research Foundation, New Delhi.