China's deliberate ambiguity in the East Sea
Chinese officials said on August 29 that they would require a series of vessels to "report information" when passing through the area they consider to be their "territorial waters" from September 1, 2021.
Earlier this year, when China passed the revised Coast Guard Law, the world was worried, especially when the wording in this law was ambiguous.
"This law shall apply to coast guard organizations carrying out maritime rights enforcement activities in and above the sea areas under the jurisdiction of the People’s Republic of China," it said. In the draft law published in November 2020, in article 74, “the sea areas under jurisdiction” are explained as “internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf and other sea areas under the jurisdiction of the People's Republic of China."
Chinese Coast Guard vessels. Photo: Sino Defense
However, when the Coast Guard Law was officially adopted, the interpretation of "the sea areas under the jurisdiction of the People's Republic of China" disappeared. This leaves the term "sea areas under the jurisdiction of the People's Republic of China" undefined. And China will be free to interpret this matter.
China also vaguely referred to its claim of jurisdiction over 3 million square kilometers of maritime space, often referred to as its "green national territory". This area includes Bohai Bay; a large part of the Yellow Sea; the East China Sea to the east of Okinawa Trough, including the waters surrounding the disputed Senkaku/Diaoyu Islands; and all waters within the “nine-dash line” in the East Sea.
According to Beijing's calculations, "more than half" of this space is disputed by other countries.
This ambiguity of China is not only related to the Coast Guard Law, but also in many other legal documents.
According to the media, Chinese officials said on August 29 that they would ask a series of ships to "report information" when passing through the areas that China considers to be its "territorial waters", starting from September 1, 2021.
This announcement is related to the Maritime Traffic Safety Law that China passed this April.
Article 54 of this law is completely new compared to the previous drafts. It clearly stipulates that “submarines, nuclear ships, ships carrying radioactive materials and ships carrying oil, chemicals, liquefied gas and other hazardous substances must report detailed information upon arrival in the territorial waters of the Republic of China".
The regulation restricts vehicles from entering China's territorial waters. However, Article 117 explaining the terms of this law, does not clearly explain how China's "territorial waters" is defined, and whether it is based on the provision of "territorial waters" as the waters of 12 nautical miles from the baselines as defined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) or not.
What is worrying is that when answering the media, expert Song Zhongping from the Chinese military said: "This advance notice requirement will standardize the management of the country's territorial waters, improve the ability to protect China's sovereignty and security."
Song Zhongping also said the new regulation applies to China's territorial waters - including the East China Sea, the East Sea and China's islands and reefs - to regulate China's management of those territorial waters.
In addition, this law also stipulates that any ship deemed "dangerous to the safety of China's maritime traffic" will also be required to report information, including name, signs, current position, next port of destination and estimated time of arrival. Vessels will also be required to provide cargo and tonnage information.
The Chinese media noted that the Maritime Safety Administration of China "has the right to expel or refuse to allow a ship to enter China's waters if it is deemed to pose a threat to national security".
The question is: Why does China maintain ambiguity in these legal documents?
We all know that China's biggest ambition is to monopolize the East Sea. However, they do not have any legal basis to support this ambition. China cannot use force to seize the East Sea because they face many disadvantages.
Therefore, China has applied what Western researchers call "gray zone tactics", that is, using methods of intimidation, coercion, even attack, but not directly using the Navy. Because according to international law, when using the military, it will be considered
an “invasion by force”, or violation of the UN Charter and will be condemned by the international community.
China must also find reasons for its “gray zone activities”, and because there is no basis in international law, it must make its own rules in domestic law. Therefore, China has deliberately maintained ambiguity in its legal documents, to have an excuse for aggressive actions.
To protect its maritime interests against China's gray zone tactics, Vietnam needs to use integrated measures, diplomatically, legally, and on the ground, specifically:
Vietnam needs to continue to clearly show its active role in ASEAN to promote the negotiation process for the Code of Conduct (COC) for the East Sea, towards an effective and substantive COC in compliance with international law. The COC must be legally binding, which should clearly state that countries are not allowed to build artificial islands, to militarize island features, to block ships carrying supplies or rotating personnel, to establish an air defense identification zone (ADIZ), or to threaten to use force when settling disputes in the East Sea.
At the same time, Vietnam needs to strengthen cooperation with major powers in the region and the world, especially in the field of sharing intelligence, providing means and equipment to protect sovereignty over seas and islands. Naval forces should expand their participation in international exercises (RIMPAC) for deeper integration as well as build partner networks in the region.
In addition, Vietnam needs to take advantage of international and regional forums to protect its maritime interests, analyze clearly the intentions in the "gray zone strategy", and clarify the risks that make the East Sea tense from China's actions.
The functional forces, especially the navy, air force, coast guard, fishery control... need to invest more resources to modernize equipment, so that we are not passive in the field.
We also need to maintain the presence of labor forces at sea, to contribute to firmly asserting our sovereignty. And law enforcement agencies are always ready to support and protect people when necessary.
The most solid strategy to protect the sovereignty of the sea and islands is to develop Vietnam into a country with a rich and strong marine economy.
American expert on international relations Joseph Nye said that the power of a country, besides "hard power" including military force, population, geography, and strategic resources, also includes "soft power".