About the author: Maria Oliveira (J.D. candidate, 2024) is a Contributor to Travaux. She received her Bachelor of Arts in History from the University of Connecticut in 2021 and is interested in studying international and comparative law. In her free time she enjoys playing piano and baking pies.
Abandoned Ships in the South China Sea by Trey Ratcliff, available here.
As of September 1, 2021, new revisions to China’s Maritime Traffic Safety Law (MTSL) regulating the passage of ships through China’s territorial waters went into effect. The new provisions have drawn backlash from Western observers and Beijing’s neighbors in the South China Sea. These countries perceive the MTSL changes as an illegal attempt to expand the bounds of China’s sovereignty. On September 8, the United States responded to the MTSL revisions by sailing the USS Benfold to the Spratly Islands in a freedom of navigation operation.
China’s state-run media reported that the ship trespassed the country’s territorial waters and was therefore expelled. Naturally, the US military contested this narrative, saying that the operation was a success and that Beijing’s stance violates “international rules and norms” and encroaches on the maritime rights of its Southeast Asian neighbors.
The Benfold spat highlights controversy over the legality of China’s actions in the South China Sea. In particular, Beijing’s most recent MTSL amendments raise two primary questions:
Are these regulations consistent with the principles of freedom of navigation and right to innocent passage?
Is the MTSL’s definition of China’s territorial seas compatible with international law?
Freedom of Navigation and Right to Innocent Passage
Critics of the MTSL argue that it violates states’ rights to innocent passage through territorial waters. This principle is enshrined by the 1982 United Nations Conference on the Law of the Sea (UNCLOS), which governs maritime sovereignty.
MTSL Article 19 authorizes China’s “maritime administrative agency to establish ship routing and reporting areas, traffic control areas, and restricted navigation.” MTSL Article 54 requires certain types of ships, namely those carrying hazardous materials, to notify Chinese authorities prior to entering territorial waters. UNCLOS permits these types of restrictions within a state’s territorial seas as long as they do not impede the principle of innocent passage, which the treaty defines as any vessel transit that is not “prejudicial to the peace, good order, or security of the coastal State.” Thus, MTSL Article 19’s provisions that control and direct traffic are legal.
However, controversy arises over whether the MTSL’s requirement for prior notification or authorization is consistent with the UNCLOS principle of a ship’s right to innocent passage. On the one hand, prior notification requirements came up at UNCLOS negotiations, but were left out because they did not have enough support. The president of the UNCLOS conference even confirmed afterwards that a ship exercising its right of innocent passage has “no need . . . to acquire the prior consent or even notification of the coastal State.” This evidence weighs against the legality of requiring prior notice for nuclear or hazardous ships.
From the Chinese perspective though, this legal question is not so clear cut. Ding Duo of China’s National Institute for South China Sea Studies argues that just because UNCLOS does not expressly allow coastal states to demand prior notice of passage from foreign vessels, that does not mean doing so is illegal. In fact, there are already several other countries who require prior notification to enter their territorial waters with nuclear ships or hazardous materials.
This table illustrates the different perspectives on a coastal state’s right to require prior authorization or notification from a ship carrying hazardous cargo.
Some countries, including the US and United Kingdom, oppose any kind of regulation on states’ rights to carry hazardous materials into other territorial waters. Others, like Canada, require prior notification when ships enter their territorial waters with hazardous materials. Nations like Egypt and Malaysia take this a step further and require that these ships receive authorization from their government. Lastly, there are states that outright ban ships from carrying hazardous materials in their territorial waters.
The legality of prior notification requirements ultimately hinges on whether nuclear-powered ships and ships carrying hazardous materials negatively impact a coastal state’s “peace, good order, or security.” Given this divided landscape, MTSL Article 54 seems less like a blatant violation of international law and more like China taking an official stance in a wider international debate.
On the other hand, there are articles of the MTSL where China more clearly overextended UNCLOS provisions. For example, MTSL Article 44 prohibits innocent passage through restricted navigation zones designated by China’s maritime administrative agency. On its face, this appears in line with UNCLOS Article 25, which permits temporary restrictions on innocent passage for purposes related to military and security matters. However, MTSL Article 44 allows these curbs to occur for any purpose and without time limits.
MTSL Article 52, which implements traffic control restrictions for safety purposes, presents a similar issue. This regulation includes limitations on speed, delimitation of traffic control zones, and restrictions on innocent passage. The former two measures are legal if performed within China’s territorial waters. However, under UNCLOS, countries cannot restrict innocent passage except for military purposes. Yet, MTSL Article 52 enumerates five non-military purposes to justify these restrictions.
Thus, MTSL Articles 44 and 52 are overly broad in their interpretation of the license to restrict innocent passage within their territorial waters, and illustrate how some of the MTSL’s contents are clear contradictions of international law.
What Are China’s Territorial Seas?
Controversy also arises over the legality of the MTSL definition of China’s territorial seas. In Article 2, the MTSL defines Beijing’s “territorial sea” as “sea areas under the jurisdiction of” China. This vague terminology likely refers to waters extending 12 nautical miles from what China considers its territorial land: "the mainland and its offshore islands, Taiwan and [its] various affiliated islands, including [the] Diaoyu Island[s], Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to” China. This definition of Beijing’s territorial seas, called the Nine-Dash Line, is highly controversial.
An illustration of Beijing’s Nine-Dash Line definition of its territorial seas.
China’s assertion of sovereignty over South China Sea islands relies on its interpretation of its alleged historic rights to the region. China claims to be the first to discover the islands and establish communities and economic activity there. Beijing also asserts that over these two millennia, its jurisdiction has been continuous and unchallenged. Dating back to 111 BCE, historical documentation and archaeological evidence such as ruins, pottery, and coins all demonstrate a Chinese presence on the South China Sea’s islands at several points over the centuries.
However, documentation and archaeological records alone are not dispositive of China having the sole legal claim to sovereignty over the islands and their surrounding waters. First, the record is sporadic, and only proves that Chinese people lived on the islands at some points in time. Second, China’s Southeast Asian neighbors have historically undertaken economic and explorative endeavors in the South China Sea islands as well. Dictum from a 2016 UN Tribunal case stated that while Chinese fishers and navigators worked in the South China Sea and utilized the islands, so did people of other countries. Vietnam, for example, claims that it has exercised sovereignty over the Paracel and Spratly Islands since the 16th century, and it too has artifacts and historical records to show for it. China’s interpretation of its historic rights therefore seems rooted in a skewed perspective that defines China by the extent of its sphere of historical and cultural influence at the expense of its neighbors.
Moreover, in the aforementioned UN Tribunal case, the court held that China’s conception of its historic rights has been misguided with respect to the principles and regulations set forth by UNCLOS. In this case, the Philippines sued China for violating its Exclusive Economic Zone (EEZ). EEZs enable a country to have exclusive rights to subsurface ocean resources that lie beyond a country’s territorial waters. Manila’s EEZ overlaps with Beijing’s Nine-Dash Line. Because China considers the Nine-Dash Line to be the boundary of its territorial waters, it believes it has a right to use the resources within that boundary—even those encompassed by the Philippines’s EEZ. The Tribunal’s holding in favor of Manila determined that any historic rights Beijing may have had to maritime resources in South China Sea were “extinguished” if they conflicted with any EEZs established by UNCLOS. The decision implies that the MTSL is illegal if it applies to any other country’s EEZ.
In Conclusion
China did not consent to the UN Tribunal’s jurisdiction and says it is not bound by any of its holdings. Although it is doubtful that their claims to the South China Sea islands would hold up in an international court, China likely intends the MTSL to apply beyond the limits of its legally sanctioned territorial seas. Unfortunately, this domineering attitude towards the region will likely continue to increase tensions between Beijing and Western powers for the foreseeable future.