Rule of law for governance in south china. With the advent of a more aggressive era, Beijing’s New Maritime Law, 2021, has become a significant battleground for asserting legitimacy and strategic communication. Over the last decade, Beijing has been consistently increasing the usage of law as a social tool to serve many ends, what scholars call a classic move of ‘lawfare’. Rule of law for governance in south china.
‘Lawfare‘ is a term that refers to the usage of law to achieve desired results related to national security. Going back to the 1950s, the term was frequently used somewhat unrelated to national security. Rule of law for governance in south china.
However, it rose to prominence after the appearance of “Unrestricted Warfare“, a military strategy book written by two officers of China’s People Liberation Army who wanted future officers of the Army to use a legal instrument in institutions to achieve strategic ends.
Rule of law for governance in south china
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In its first “Plan on Building the Rule of Law in China (2020-2025)”, Beijing aims to establish its own rules with Chinese characteristics. This is why it becomes vital to understand the future course of the Indo-Pacific region and calibrate responses accordingly.
The modern Chinese legal system has borrowed its working and understanding from the former Soviet Union, modified it according to the Chinese Communist Party’s (CCP) convenience.
It uses the Marxist-Leninist concept of laws, which essentially focuses on socialism, opposes anarchism, and opposes capitalism. Now, after successfully using it to control the internal dynamics of their country, they shall use this set of laws to shape the future course of foreign policy and international affairs in the region.
Since the change of party leadership in 2012, Xi Jinping has furthered a new substance of strategic thinking. This strategic thinking promotes the usage of law to achieve means in China’s internal politics and international context. Essentially, it would translate as an extension of the party, which will have the legitimacy to interpret its political will and enforce compliance through law ‘with Chinese characteristics.
What are the contentions in the dispute?
Before we chronicle the events that led to Beijing passing the new law, it would be helpful to understand specific terms of maritime law which are in contention through this figure:
Firstly, one has to understand the meaning of the term ‘Territorial Sea’. This term refers to the area up to 12 nautical miles from land; it is considered the state’s sovereign territory. Countries can bring claims on it, usually, a country’s Coast Guard manages these 12 Nautical Miles (NM).
Secondly, the term ‘Contiguous zone’ refers to 12 more nautical miles of the area starting from the territorial sea (24 miles). This area is considered as an exclusive territory of the state and it is part of the Exclusive Economic Zone as well. The Country’s Navy manages this space and jurisdiction.
Recently, it has been seen that USS Lassen had conducted ‘Freedom of Navigation (FONOP)’ in the South China Sea area to challenge the policies set by China. In October, China and Russia conducted joint naval drills in the Sea of Japan (areas of Osumi and Tsugaru straits) as they were part of the international waters.
Finally, ‘Exclusive Economic Zone (EEZ)’ refers to the area up to 200 nautical miles from land. The country can exercise special exploration and exploitation rights regarding natural resources, including the territorial sea and the contiguous zone. In International Waters, any country can make a pass since it is a common heritage of mankind.
Contention in the South China Sea: Dilemmas of the Past?
Even after five years of the UNCLOS arbitration award of 2016 relating to the South China Sea, Beijing continues to project its strategic goals through various laws and claims which undermine various countries’ sovereignty. This arbitration was brought by the Philippines concerning issues in the South China Sea conflict.
The Tribunal which was constituted under the 1982 Law of the Sea Convention delivered a unanimous and enduring decision firmly rejecting the PRC’s (People’s Republic of China) expansive maritime claims of ‘Nine-Dash Line’ as having no basis in international law. It stated that Beijing has no lawful claim to the area determined by the Arbitral Tribunal to be part of the Philippines’ exclusive economic zone (EEZ) and continental shelf. Rule of law south china sea.
Thus, after this judgment was passed in 2016, it was ascertained that there were no natural “islands” in the Spratly Islands group. China created its own artificial islands in the South China Sea using sand dredgers.
They supported it by sending fishing boats, then sending coast guards to ascertain their claim, and finally setting up a military base. Therefore, the Philippines pursued the matter to the Permanent Court of Arbitration and set a precedent under the Law of the Sea Convention for Beijing to comply with their obligation under the rule of law.
This understanding of ‘Nine-Dash Line’ was furthered by Justice Zhiguo Gao and Bing Bing Jia. They said that China’s claims for South China Sea waters fall under “historic rights” under the UN Convention on the Law of the Sea. The court decided that these claims were unsustainable and inconsistent with international law since they affected the sovereignty of Malaysia, Thailand, Singapore, Viet Nam, Indonesia, Japan, among the other countries in the region.
This verdict effectively ended China’s broad claims established implicitly by delineating the so-called Nine-Dash Line, Beijing’s demarcation line, which covered most of the South China Sea.
NATIONAL SECURITY LAW IN PAST
In the past, we have seen several instances as the National Security Law of 2015; the Cryptography Law of 2020; the enforcement mechanism in BRI (Border Road Initiative); the Coast Guard Law of 2021; Data Security Law of 2021; its approaches in the maritime domain in the South China Sea; deciding the status of Taiwan or Hong Kong; or its approaches to Arctic Policy; the most recent – land border law in 2021 bordering India and covering its 22,000 km boundary with sixteen other countries.
When we examine this law, we see that Beijing has tried to redefine two contentions through this new Coast Guard Law in April and the revised Maritime Traffic Safety Law in January 2021. They are as follows:
First, Article 21 of the CCG Law stipulates that if a foreign warship or government vessel violates China’s domestic law in waters where China claims jurisdiction, the CCG will take enforcing measures, up to and including forced eviction and towing, thus challenging the concept of ‘innocent passage‘.
Article 22 permits the CCG to use weapons against foreign organizations and individuals that infringe on China’s sovereign rights and jurisdiction at sea, challenging the internationally accepted definition of ‘territorial sea‘ as well.
However, UNCLOS Articles 32, 95, and 96 stipulate that warships and government ships are completely immune from the jurisdiction of any country other than the flag state. Therefore, if the CCG implements the actions defined in Articles 21 and 22 of the CCG Law, it would be in violation of international law.
Taking illegal coercive measures against other country’s warships and government ships causes an increased risk of armed conflict and the Chinese Coast Guard’s combat capability far surpasses that of most Asian navies in the region. Rule of law south china sea.
Most recently, the Indonesian Government made a stringent statement by reiterating that they would never give up an inch in as they break their silence against the illegal Chinese presence in the region.
One of the most vocal voices has been the Philippines, as they have been rallying to bring all the small nations to form a block against China as they believe that if left unchecked, China could expand its challenges to international norms through additional coercive actions within other maritime regions, including the Indian and Arctic Oceans.
How has India calibrated its engagement in the Indo-Pacific?
Historically, India has taken a neutral position in various South China Sea disputes, even as tensions have threatened the region’s security. In more recent times, ever since the Galwan incident, there has been a noticeable change in New Delhi’s response.
India has projected that it can advance the QUAD Indo-Pacific strategy materially, technologically, and politically. While New Delhi steps up its engagement with European and QUAD countries, this shows solid political resolve to confront the growing security challenges in the Indian Ocean Region (IOR).
The Indian Navy offers the best chances to keep the Chinese assertiveness in check, given the military strength, geography, and most strategic element of rule-based order – such as the rule of law, freedom of navigation, and territorial integrity. Various countries across South Asia faced with regular Chinese military aggression look up to India, a more stable and unique Asian power.
Recently, the Indian Navy set up a unique center named Information Fusion Centre for Indian Ocean Region (IFC-IOR), which saw liaison officers from 13 countries such as Australia, the United Kingdom, France, Japan, and the United States, among the others.
Its main objective is to enhance Maritime Domain Awareness which would encompass identification, monitoring, and constant tracking of these vessels is imperative to prevent any potential threat from the sea from impinging on the coastal and offshore security of the country. Whether the world likes it or not, it is clear from New Maritime Law, 2021 that Beijing will not back down on its expansive and ambiguous maritime claims.
The recent announcement of AUKUS and various other platforms, including non-regional players such as the UK, US, and other European countries, have declared their Indo-Pacific strategies.
Even with their warships and aircraft carriers stationed in the region to challenge the expansive claims. Governments have to work together with regional players like India, Japan, Singapore, Australia, and South Korea to work in the Indo-Pacific region to manage the status quo, peace, and stability.
Finally, it is essential to differentiate the Chinese understanding of International Law from the Common Understanding of International Law. The knowledge of laws comes from the domestic legislation China passes.
Thus, a concrete plan is essential towards understanding the Chinese Legal System and its aims with a public discourse at a global level – as very soon Chinese negotiators, diplomats, and entrepreneurs shall be making the argument that includes the phrase “the Chinese rule of law” to enforce their political interests around the world.