In the dispute over the East Sea (also known as the South China Sea), China has always followed a vague policy when referring to the issue. The full text of the aforesaid Regulations constitutes a further proof of such behavior of China in the dispute.
On December 31, 2012 Xinhua online carried the full text of “The 2012 Regulations for the Management of Coastal Border Security in Hainan Province” (hereinafter referred to as “the 2012 Hainan Regulations”). The Regulations have taken effect as of January 1, 2013.
The 2012 Hainan Regulations are applied by Hainan province to a large area of about 2 million km2 of the East Sea, including “Sansha”, in conformity with which, the border police of Hainan province will have the right to inspect, detain and expel any foreign ship “illegally entering waters managed by Hainan.”
In an interview with The New York Times, Wu Shicun, Head of Hainan’s Foreign Affairs Office and President of the National Institute for South China Sea Studies, said that the new Regulations are applicable to all islands and waters around these islands in the East Sea, including the islands in dispute with Vietnam and the Philippines. According to Wu, the Regulations are applicable to “all entities within the nine dotted line and the coutigous waters.”
Wu Shicun also said that the immediate aim is to control the ships which, in his words, “are illegally conducting fishing operations” by Vietnam.
The Regulations have triggered concern and opposition from countries concerned, such as ASEAN, the U.S., EU, the Philippines, etc. The Philippine Department of Foreign Affairs has protested against China’s claim for almost the entire East Sea, since such claim constitutes not only an excessive one, but also “a threat to all countries.” The U.S. has sought to reassure parties concerned when Peter P. Velasco, spokesperson of the State Department, called on all parties to avoid “unilateral actions that raise tensions and undermine the prospect for other diplomatic solutions.”
In response to the worries of the countries concerned, China has sought to vaguely soften the public opinion by explaining that the Regulations were just issued by the local authorities, and on December 31, 2012, Hua Chunying, spokesperson of the Chinese Ministry of Foreign Affairs, said that the scope of board and search is applied to 12 nautical miles of the Hainan’s coast, confirming that there is no change to the 1999 rules.
All the statements of the spokesperson and the officials of Hainan province confirmed that are applied only the application of the 2012 Regulations within 12 nautical miles of the Hainan’s coast, but in fact, the full text that has been publicized is like that. The new legal document is of the highest legal applicability and serves as the basis for the China’s law enforcement bodies to carry it out; it is not as what the spokesperson stated or local authorities said in the interview. This article will focus on some legal aspects of the 2012 Regulations and its impact on the dispute over the East Sea and the parties concerned.
Following the establishment of “Sansha” city, the 2012 Regulations can be seen as the next step in China’s strategy to build a legal basis for the realization of the “bull tongue-shaped line”, thereby expanding the scope of control over the East Sea. (In the phot Vietnamese fishing vessels off to the sea)
New contents in the 2012 Regulations
In the full text of the 2012 Regulations made public on the website of Hainan province on December 31, 2012, there are new contents that expand the jurisdiction of Hainan province over the waters claimed by China. The 2012 Regulations consists of 6 chapters and 52 articles, which have taken effect since January 1, 2013 (the 1999 Regulations consisted of 5 chapters and 40 articles). The new contents include Article 2 that stipulates the scope of application, namely the waters under jurisdiction and the coastal area of Hainan province. Here, the waters under jurisdiction mean the inclusion of “Xisha” (or Hoang Sa/Paracels of Vietnam), “Zhongsha” (including Huangyan Shoals claimed by China) and “Nansha” (or Truong Sa/Spratlys of Vietnam). Meanwhile, the 1999 Regulations stipulated the scope of application to ports and coastal areas of Hainan province without Hoang Sa and Truong Sa archipelagos in dispute with Vietnam and other countries. Specifically, in the 2012 Regulations, the word “Sansha” is repeated three times, in Article 6 (allowing border police stations to be built in “Sansha” city), Article 7 (increasing patrols for security in islands, shoals and waters that belong to “Sansha” city), and Article 13 (allowing border police of “Sansha” city to act on behalf of border police services that grant sea-going permits to carry out procedures, such as changing, revoking permits of vessels and sailors operating in the islands and waters of “Sansha” city).
With the repetition of the phrase “administrative region” while referring to the illegally established “Sansha” in the Regulations, which is protested against by Vietnam and the countries concerned, China clearly shows its desire to assert the scope to be applied to the islands in dispute with Vietnam (Hoang Sa), with the Philippines (Huangyan/Scarborough Shoals) and with Philippines, Vietnam, Malaysia, Brunei (Truong Sa).
Another new content in the 2012 Regulations in comparison with the 1999 rules is that foreign vessels, for the first time, are put as subjects to the application of these Regulations. Article 31 defines six acts of foreign vessels to be seen as violations of the Regulations: (i) stop or anchor illegally, or seek troubles when travelling through territorial waters administered by Hainan province; (ii) enter or exit without inspection or permit, change ports of exit or entry without authorization; (iii) illegally land on islands under the administration of Hainan province; (iv) damage coastal defense, production or living facilities on the islands administered by Hainan; (v) carry out propaganda activities that infringe on state sovereignty or state security; and (vi) acts that violate laws as well as the rules of the Regulations for the management of coastal border security.
Moreover, Article 47 also allows the border police to take measures to handle foreign vessels and sailors that violate the Regulations by landing on, checking, detaining, and expelling the ship in question, forcing it to stop, change course, or return, confiscating the ship and navigation equipment attached to it, and based on “Public Security Administration Punishments Law” and “Law on the Control of the Exit and Entry” of China to institute legal proceedings.
Impacts on the dispute over the East Sea
The application of jurisdiction rights within the territorial sea of 12 nautical miles is legitimate interests of a coastal state in conformity with international law. A coastal state has full authority to search and detain ships of other countries in its territorial sea of 12 nautical miles – this right is provided for by UNCLOS provisions, however, the application to entities under dispute in the East Sea with other countries, such as Vietnam, the Philippines and other ASEAN countries would only further raise the tension. In disputed areas, countries should refrain from acts that would do harm final demarcation. The countries can reach agreements with one another to apply temporary measures for joint management or exploitation of resources there (Articles 74, 83 of the UNCLOS). The unilateral promulgation of the new rules by China runs counter to the provisions of international law, creating more tension to the situation in disputed area and also running counter to the Declaration of the Conduct by Parties in the East Sea (DOC) which was signed by China with ASEAN in 2002.
Following the establishment of “Sansha” city, the 2012 Regulations can be seen as a further step in China’s strategy to lay the legal basis for its realization of the “bull tongue-shaped line,” thereby expanding its scope of control over the East Sea. In the immediate interview with the New York Times on December 1, 2012, Wu Shicun said that the 2012 Regulations are just aimed at dealing with Vietnamese fishing vessels and applied within 12 nautical miles of the Hainan’s coast, but the real legal basis actually lies in the written text of the Regulations, which clearly denotes the application to “Sansha”. Therefore, the expansion of the scope of application to all other the disputed islands and waters in would be very easy in case of no alert and opposition from the parties concerned. Vessels of Vietnam and other countries whilst entering disputed areas in “Sansha” can be chased away or detained in accordance with Article 47 of the Regulations, the right to freedom of navigation will no longer be guaranteed. The Regulations, once applied to islands which are currently occupied by Vietnam, the Philippines and Malaysia, would easily lead to conflicts.
So far, China has conducted acts of detaining Vietnamese fishing vessels and fishermen in disputed waters, but with the new rules, China’s law enforcement bodies are given more legal basis to detain and fine Vietnamese fishermen. Therefore, this will likely increase the number of China’s detentions and harassments of Vietnamese fishing vessels and fishermen in disputed areas, such as Hoang Sa.
The 2012 Regulations also constitute a further step of China in consolidating the wrongful legal status of the baselines applied by China to the Hoang Sa archipelago. Regardless of the legal status of Hoang Sa being a territory under dispute between Vietnam and China, archipelagic baselines can only be applied to, in conformity to Article 46 of UNCLOS, archipelagic states, such as the Philippines or Japan, so by drawing archipelagic baselines for the Hoang Sa archipelago, China has violated the UNCLOS. After Hoang Sa, there may be Truong Sa, when one day China also draws archipelagic baselines and applies the 2012 Regulations there if it is not met with objection from the parties concerned.
Here are some preliminary assessments under a legal perspective on the 2012 Regulations, the difference between the 1999 and 2012 Regulations and its impacts on the dispute in the East Sea. Basically, it can be noticed that the 2012 Regulations which are aimed at consolidating China’s “bull tongue-shaped line” claim violate Vietnam’s sovereignty over the archipelagos of Hoang Sa and Truong Sa, Vietnam’s sovereign rights to its waters, hinder freedom of navigation in the East Sea and complicate the dispute. In the dispute over the East Sea, China has always pursued a vague policy when its “words do not suit with its deeds” with regard to the issue of the East Sea. The full text of the 2012 Regulations continues to be a striking demonstration of such a behaivior of China in the dispute ./.