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:
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.