South China Sea: Compulsory Arbitration?
China’s new regulations allowing the seizure of foreign vessels acting illegally in its claimed territorial sea in the South China Sea may accord with international law, but they might also open the South China Sea disputes to compulsory arbitration.
By Sam Bateman
ONCE AGAIN China has stirred up a “hornets’ nest” in the South China Sea. New regulations recently approved by the Hainan’s People’s Congress to board and search vessels in China’s claimed territorial sea in the South China Sea have met with an angry response from other countries bordering the sea.
South China Sea
Despite protests by other countries, the new regulations are most likely in accordance with international law. Technical detail is lacking so far about the regulations although it seems probable they only refer to the twelve nautical mile territorial sea and not to the wider exclusive economic zone. If this is the case, then they might be seen as a legitimate expression of a country’s sovereignty over its territorial sea. The vexed issue causing the angry response from China’s neighbours is that the new regulations extend to features in the South China Sea that are claimed by other countries.
Enforcement In Territorial Sea
A country is perfectly entitled to board and arrest a vessel acting illegally in its territorial sea or its internal waters. The only exceptions to this principle are, first, if the vessel is exercising the right of innocent passage and proceeding directly through the territorial sea. But if such a vessel engages in “non-innocent” activities, then it is open to boarding and arrest by the coastal state. Non-innocent activities include fishing, conducting research or causing serious pollution, as well as acts that are prejudicial to the peace, good order or security of the coastal state, including for example, interfering with the communications of the coastal state, or any acts of propaganda aimed at affecting the security of the coastal state.
China’s new regulations are believed to define six actions that could lead to the seizure of a foreign vessel, including entering ports without approval and conducting acts of propaganda that threaten national security. All these actions could be accepted as either “non-innocent” or prejudicial to the interests of the coastal state provided of course that the sovereignty of the coastal state over the waters in question is not in dispute.