Hainan’s New Maritime Regulations: An Update

On January 1, 2013, Hainan’s new maritime security regulations entered into force.  Entitled Regulations for the Management of Coastal Border Security and Public Order in Hainan Province, they replaced those lastissued in 1999.  When the new regulations were first announced in November they attracted a great deal of attention because they appeared to authorize broad powers to interfere with freedom of navigation throughout the South China Sea.  At the time, however, the full-text of the regulations had not been published, making it difficult to discern the exact impact they would have on China’s territorial and maritime claims in the South China Sea.

Now that the regulations have entered into force, the full-text has been released.  Containing fifty-two articles divided into six sections, the new regulations are an expansion and elaboration of the 1999 version, which had forty articles.  Despite the inclusion of new provisions not contained in earlier versions regarding the seizure of foreign vessels, the full-text of the 2012 regulations indicates a primary focus on the management of Chinese vessels and coastal areas.  In fact, according to the Hainan government, the regulations were revised to address increased smuggling, theft and other types of illegal activities at sea.  The complete text of the new regulations confirm my preliminary analysis; China is unlikely to significantly increase efforts to interfere with freedom of navigation, including expelling or seizing foreign vessels.

The bulk of the new regulations, roughly forty-two articles, address the activities of Chinese vessels from Hainan and the provinces coastal waters. Topics include the credentials and documents that Chinese vessels from Hainan must possess and the rules that they must follow in the province’s waters.  For example, the regulations allow public security units to establish warning areas (jingjie quyu) and special management areas (tebie guanli quyu), and to prohibit Chinese vessels from entering these zones.  The regulations also ban Chinese ships from entering the waters of foreign countries, from carrying foreign flags and from entering China’s military administrative districts (junshi guanli qu).  The regulations outline ten types of prohibited actions that would disrupt public order from transporting weapons, selling drugs, smuggling and illegal entry and exit to the use of poisons and explosives, among others.

The activities of foreign vessels within Hainan’s coastal waters are discussed in two of the fifty-two articles.  As outlined in previous Chinese news reports, one provision (Article 31) states that foreign vessels that enter the province’s waters should respect China’s national laws and refrain from any actions that would harm public order, such as illegally stopping within Hainan’s 12 nautical mile territorial waters or landing on the province’s islands and reefs, among others.  The six actions that would provoke action by public security border defense units are the same as reported earlier.

A second provision (Article 47) states that public security border defense units can “legally board, inspect, detain; expel, and force the vessels to stop, change course, or reverse course” as well as “seize offending vessels or instruments such as navigation equipment.”

The new regulations refer specifically to Sansha City, a prefectural-level administrative unit that Hainan established in June 2012 to oversee all the disputed islands and waters that China claims in the South China Sea.  Article Seven calls on public security border defense units to conduct security patrols in the islands, reefs and waters of the city and to support joint law enforcement efforts (lianhe zhifa) in the South China Sea.

Nevertheless, the scope of the new regulations will be limited.  First, regarding the activities of foreign vessels, the regulations refer only to the province’s 12 nautical mile territorial waters (linghai).  As a result, the zone where public security units might board or seize foreign vessels is limited to the area where coastal states enjoy more or less sovereign rights apart from innocent passage (that the new regulations do not challenge) under the UN Convention on the Law of the Sea.

Second, according to Article Five, the regulations apply only to public security border defense units (gong’an bianfang jiguan).  The provision states that the “province’s public security border defense organs are responsible for this province’s coastal defense and public order management work.”  The article further calls on other departments—including foreign affairs, maritime affairs and fisheries—to assist the public security units in their work, indicating that the regulations do not apply directly to these other actors.  In other words, these regulations do not empower “other departments” that routinely operate within China’s claimed 200 nautical miles Exclusive Economic Zone to seize or detain foreign vessels.

Third, despite the reference to the islands and reefs of Sansha City, the regulations will be implemented mostly in the waters around Hainan Island itself and the Paracel Islands, not other disputed areas in the South China Sea.  Wu Shicun, the director of Hainan’s foreign affairs office (and president of the National Institute for South China Sea Studies), noted in December that the regulations would only apply to those areas of Hainan where China had drawn baselines, from which a 12 nautical mile territorial waters would be delineated.  In 1996, China announced baselines around the Paracels as well as Hainan Island, but not other land features that it claims in the South China Sea, including Scarborough Shoal and the Spratly Islands.

[This originally appeared in The Diplomat.]