Chinese Domestic Law in the South China Sea

By Sarah Lohschelder Download PDF | Back to Issue 13
In holocene years, the unlike branches of the taiwanese government have strategically used domestic jurisprudence to put chinese maritime claims into context, produce ambiguity about the legality of taiwanese claims, and expand taiwanese charm over challenge nautical zones. The effect is an expansion of chinese influence in the South China Sea and an increasing challenge to external jurisprudence itself .
A fundamental issue with China ’ sulfur use of domestic jurisprudence to challenge external rules and standards is that China ’ s domestic legal terminology does not cohere with international legal definitions. thus, a note verbale submitted to the United Nations in 2009 states : “ China has indisputable reign over the islands in the South China Sea and the adjacent waters, and enjoys autonomous rights and jurisdiction over the relevant waters vitamin a well as the ocean floor and subsoil thereof. ” [ Emphasis added. ] 1 Neither adjacent nor relevant waters are defined in external law to designate any particular nautical zone. This alone terminology serves as a foundation of China ’ s domestic nautical law and helps the government alter domestic thinking away from the international standard. Abroad, this terminology allows China to remain ambiguous about the claim boundaries of its maritime claims.2 This is helpful to China because—as it found out in absentia before the arbitral court at the Permanent Court of Arbitration—precise claims with no footing in international law fail before the courts. China tried to claim maritime areas based on historic rights rather than distance to its land district and had its argument rejected for violating the United Nations Convention on the Law of the Sea ( UNCLOS ) .3

The Supreme People ’ s Court, China ’ sulfur highest judicial body, recently notified the National People ’ s Congress that the court ’ mho legal power extends to all areas under China ’ south “ autonomous control, ” including “ jurisdictional seas ” such as the quarrel Sansha in Hainan province. Although not recognized in international law, China uses the term “ jurisdictional seas ” to describe inland waters, the territorial ocean, its contiguous zones, its exclusive economic zone ( EEZ ), and continental shelf ( adenine good as other sea areas that China claims ). The terminus serves to justify China ’ randomness claims beyond UNCLOS rules. The implications of this extension of Chinese domestic legal power are ill-defined in drill but are potentially vast—especially in criminal law. For exercise, non-Chinese vessels fishing in disputed South China Sea waters may be in submission with the international law of the sea, but may violate Chinese domestic laws, potentially exposing fishermen to imprisonment of up to one year.4 Similarly, foreign crew that legally engage in impeccant passage under external law, but against the wishes of the chinese government, may besides face one year of imprison time.5 In both cases, China grants its judiciary the ability to interfere in the rights granted to foreigners under international law, thereby enhancing taiwanese control over external and challenge waters like the South China Sea .

The Supreme People’s Court, China’s highest judicial body, recently notified the National People’s Congress that the court’s jurisdiction extends to all areas under China’s “sovereign control,” including “jurisdictional seas”…

In an effort to strengthen China ’ randomness nautical model, the executive branch restructured and centralized nautical agencies in 2013. This included folding four maritime agencies into the newly constituted chinese Coast Guard dominate : China Marine Surveillance, Maritime Police ( depart of the Border Control department and once under the Ministry of Public Security ), China Fisheries Law Enforcement ( once Ministry of Agriculture ), and Maritime Anti-Smuggling Police ( once under the General Administration of Customs ) .6 The most innocent rendition of the reorganization is that it was intended to improve administrative restraint and reduce redundancy. A warier rendition sees the reorganization as character of a bigger design to achieve “ ‘ strategic management of the sea, ’ which appears to mean a comprehensive state of matter feat to achieve maritime authority of [ China ’ sulfur ] near seas in peacetime. ” 7

On the legislative front, the chinese government is considering draft revisions to its Maritime Safety Law to exercise greater manipulate over its inner and territorial waters. Some of these changes, depending on how they are implemented, are likely compatible with UNCLOS. such measures include requiring foreign vessels to ask license before entering ports or internal waters, and designating special marine areas where impeccant passage is suspended.8 Some of the contemplated changes are more controversial. For case, one proposed switch would require extraneous military vessels to request license to pass through China ’ s territorial sea—a violation of barren passage rights under UNCLOS. extra revisions would grant taiwanese authorities the exponent to stop and eject foreign vessels contravening chinese law or regulations as they transit, operate, or are anchored within the territorial sea or home waters and extending the right of hot pastime to China ’ mho “ jurisdictional waters. ” 9 here again, we see taiwanese domestic law supplanting international law to limit the rights of foreign vessels.

These developments are separate of China ’ s broader efforts to use domestic jurisprudence as a vehicle to further entrench its nautical claims in the South China Sea. Beijing ’ sulfur effort to alter existing norms, the compass of its laws, and operational capabilities have two major implications. First, China is becoming more assertive in the region, imposing its domestic law where it should not apply. Second, the implications infringe on the relevance of external law itself, which is losing influence through self-serving reinterpretations and sidelining by domestic law. As the possible amendments to the Maritime Safety Law indicate, China continues to develop and implement this scheme .
Sarah Lohschelder was a research intern with the Asia Maritime Transparency Initiative at CSIS .

Full citations available in PDF | Download PDF | Back to Issue 13