Hainan’s New Maritime Regulations: A Preliminary Analysis
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Hainan’s New Maritime Regulations: A Preliminary Analysis

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Hainan’s People’s Congress recently approved new regulations for the management of public order for coastal and border defense.  Part of the regulations authorizes public security units to inspect, detain or expel foreign ships illegally entering waters under Hainan’s jurisdiction.  As a result, initial reporting and analysis indicated that the regulations may provide a basis for China to challenge freedom of navigation in the vast disputed waters of the South China Sea.

As the full-text of the regulations have not been published, such conclusions are, at the very least, premature.  Moreover, based on information that is currently available, the regulations will likely focus on the activities of foreign ships and personnel within Hainan’s 12 nautical mile territorial seas and along Hainan’s coast, including its islands.  The basis for this conclusion is analysis of a partial summary of the regulations that Xinhua published. 

The regulations govern the activities of Hainan’s public security border defense units (gong'an bianfang jiguan).  This refers to China’s public security border defense troops, which are part of the People's Armed Police but fall under the Ministry of Public Security and include the Maritime Police (haijing, also referred to as China’s Coast Guard).  These public security units are tasked with maintaining public order in China's border and coastal areas, including port security and immigration.  However, they are not responsible for maintaining law and order within China's Exclusive Economic Zones (EEZ) or any maritime zone beyond the 12 nautical mile territorial sea.  The China Marine Surveillance force under the State Oceanic Administration holds the primary responsibility for these duties along with the Maritime Safety Administration and Fisheries Law Enforcement Command. 

The details of the Hainan regulations indicate that the conditions under which public security border defense units are authorized to engage foreign vessels is limited.  Here's the key paragraph from Xinhua:

《条例》对外国船舶及其人员,进入海南管辖海域不得有违反沿海边防治安管理的行为进行了界定,包括:通过海南管辖领海海域时非法停船或者下锚,寻衅滋事;未经查验准许擅自出境入境或者未经批准擅自改变出境入境口岸;非法登上海南管辖岛屿;破坏海南管辖岛屿上的海防设施或者生产生活设施;实施侵犯国家主权或者危害国家安全的宣传活动和其他法律、法规规定违反沿海边防治安管理的行为。

The paragraph defines six actions that could warrant boarding or other interference with foreign vessels: 1) vessels that stop or anchor within the 12 nautical mile territorial sea (linghai) or “try to pick a quarrel,” 2) vessels that enter ports without approval or inspection, 3) the illegal landing on islands under the administration of Hainan, 4) the destruction of coastal defenses or production facilities on islands under the administration of Hainan, 5) violations of national sovereignty or propaganda activities that threaten national security, and 6) other actions that threaten the management of public order in coastal and border areas.

The only maritime zone mentioned specifically in the regulations is China's 12 nautical mile territorial sea, where it enjoys more or less the equivalent of sovereign powers under the UN Convention on the Law of the Sea.  There is no specific reference to boarding foreign vessels in other zones such as the EEZ, though apparent language from the preamble refers broadly to "waters under Hainan's administration" that could include areas in the South China Sea beyond 12 nautical miles.  Nevertheless, the actions outlined above are all concern with Chinese territory or territorial waters – not the much larger maritime areas that press accounts have suggested.  This is, moreover, consistent with the duties of the China's public security border defense units that are the subject of the regulations. 

The impact on disputed areas in the South China Sea is likely to be minimal in the short to medium-term.  In the regulations, the reference to the islands under Hainan’s administration indicates that they could be used to justify or rationalize the interference with the navigation of foreign vessels in territorial waters around islands and other features that China either occupies or claims in the South China Sea.  However, the Chinese navy and not public security border forces are responsible for the defense of the islands that China holds.   Whether public security units are granted a greater role in disputed areas is a key indicator to track.

In addition, Hainan is not the only Chinese province to pass new regulations governing public order in coastal and border areas.  Within the past week, Zhejiang and Hebei have also passed similar regulations.  Importantly, Hebei is not adjacent to any disputed maritime areas.  This suggests a broader effort among coastal provinces to strengthen the management of public order in border and coastal areas and not a specific focus on disputed areas, though the regulations are relevant as discussed above.

In sum, although the regulations establish a legal basis for Hainan’s public security border defense units to board or seize foreign vessels on or near disputed islands, they are unlikely to result in a major change in China's behavior in the disputed waters of the South China Sea.  Policing China’s EEZ is the responsibility of the China Marine Surveillance and the Fisheries Law Enforcement Command, not public security units.  Nevertheless, given the applicability to disputed islands and adjacent territorial waters, China should clarify when and where these regulations apply.

M. Taylor Fravel is an Associate Professor of Political Science and member of the Security Studies Program at the Massachusetts Institute of Technology. He can be followed on Twitter @fravel.

Comments
52
Alpha roger
December 31, 2012 at 15:39

Cx. …. None are so blind as those who wouldn’t see

Alpha roger
December 31, 2012 at 15:36

Chinese are not stupid. But they are blind. And none are so blind as the stupid who would’ve see.

Alpha roger
December 31, 2012 at 15:19

Ninja. Thanks for enumeration of all warheads coma possesses. Now imagine U.S, Russia, Australia, India, Japan, Vietnam, Philippines, Cambodia in a frenzied war dance on China border with their weapons and fleets. And they’ll be singing. We will we will rock your boats. China’s freign policy failure came into sharp relief with their exodus from African countries that despite their love of nouveau Roche Chinese money didn’t want condescension of a prospector who didn’t speak English. I recommend a chill pill.

Alpha roger
December 31, 2012 at 14:59

John Chang your hope that informed flourishes will conceal your embedded lies raises you in my estimation to the top of hill of beans. a Chinese national, despite centuries under official heel would call India despotic is hallucinogen-induced delusion. China may have sent armies to its satellite towns like Tibet to subjugate it India, according to a Chinese UN ambassador, civized Asia with just one export…Buddha.

vic_anus
December 28, 2012 at 09:55

so the villain in nosetradamus' prediction is finally revealed…

vic_anus
December 28, 2012 at 09:45

10 cents ka-chingggg!!!  you must be very rich by now

satya
December 13, 2012 at 00:29

world war 3 will be due to south china sea

http://stratfoc.blogspot.com/2012/12/timebome-waiting-to-explode.html

ImperiumVita
December 6, 2012 at 23:40

I don't see why anyone is very much concerned about a law passed in China.  They have all kinds of laws, but they aren't payed any attention to becuase there is no accountability.  Power is the law in China, and the Chinese Communist Party has the power and so makes the law.  Words on a page are irrelevant. 
 
Is your house in the way of a road?  No more house.
 
In the same way.  China claims the entire sea South of China, and invades its neighbors Exclusive Economic Zones despite signing an international treaty.  Words on the page mean nothing to China.  It will take what it wants.  Whether this new law was passed in Hainan or not, China will continue to claim the seas, and will board what ships it wants, when it wants, until they are made to stop, by a law even the CCP will recognize.  . 

Errol
December 6, 2012 at 06:20

So in your opinion, those Chinese fishermen who got shot by Russian border guards were illegal poachers because they violated Russia's EEZ. But those other Chinese fishermen who were in Scarborough Shoal are legit fishermen despite the fact that Scarborough Shoal is well within the Philippines' EEZ. Wow. Double standards.

Chessboard Pawns
December 6, 2012 at 00:21

Amerikan pivot to Asia?  See how they like the Chinese pivot back to the South China Sea now.  Only Washington and Beijing are the real Queens on the chessboard.  The rest are mere Amerikan pawns and they are still too stupid to realise that.  Well, let's see how these play out and who gets play out.

Fools And Their Uses
December 6, 2012 at 00:14

Bully?  Mickey mouses should know their place. They are just asking for trouble in being unnecessarily rude, greedy, dishonest, disrespectful, and defiant.  They will get what they deserve.  The fools that they are, being used for the fools they are indeed.  Politics.  Who's playing who?  There's just too many mickey mouse fools around.

Schminner
December 6, 2012 at 00:00

Lately, China sounds like Israel…. land/sea grabbing…

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