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China Threatens to Deny Passage Rights through Peripheral Seas

On Tuesday, Chinese state media reported that the Legislative Affairs Office of the State Council is considering amendments to the 1984 Maritime Traffic Safety Law. “The revisions are based on the UN Convention on the Law of the Sea and Chinese laws on the seas, adjacent areas, and exclusive economic zones,” noted the Global Times, a tabloid controlled by the Communist Party’s People’s Daily.

If enacted, the amendments, slated to take effect in 2020, would violate Beijing’s obligations as a signatory to the UN Convention on the Law of the Sea. Specifically, the changes would require foreign ships to obtain permission to pass through “Chinese waters.”

China’s rules are inconsistent with the internationally accepted concept of “innocent passage,” which is incorporated in Section 3 of UNCLOS, as the UN convention is known, and recognized by customary international law.

In general, foreign warships under the innocent passage rule may expeditiously transit the territorial waters of a coastal state without permission if they do not engage in certain activities.

The effect of China’s proposed rules, which the Communist Party first signaled in late 2015 at its Fifth Plenum, depends on how expansively Beijing interprets “Chinese waters.” China’s official maps show nine or ten dashes that enclose about 85 percent of the South China Sea. Beijing takes the position it has sovereignty to every island, shoal, atoll, rock, and other feature inside that infamous line.

China has not, however, clarified whether it claims the waters inside the “cow’s tongue,” as the bounded area is called, as sovereign. The official Xinhua News Agency in 2011 made a statement that can only be interpreted as a claim to all such waters.

It is nonetheless clear Beijing would like to control those waters as well as waters beyond the nine-dash boundary. It seized a US Navy drone in December in an area outside the cow’s tongue.

The US and claimants to South China Sea features are unlikely to recognize any law that China enacts as described by state media last week. As Secretary of Defense James Mattis said on February 4th, “Freedom of navigation is absolute, and whether it be commercial shipping or our US Navy, we will practice in international waters and transit international waters as appropriate.”

If anything about US foreign policy has been consistent over time, it has been the defense of its right to “fly, sail, and operate” in international waters and airspace. And America has always had an expansive notion of the global commons.

“China should take the lead to establish the legal order in the Yellow Sea, the East China Sea, and the South China Sea,” says Yang Cuibai of Sichuan University, as paraphrased by Global Times. There is already such a legal order. Beijing recognized it when it ratified UNCLOS in 1996, and it is the order enforced by the US Navy and Air Force and accepted by most nations.

Beijing has just put the world on notice it intends to control international waters. That is a challenge seafaring nations cannot ignore.

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