China's new Maritime Police Law (MPL) purports to regulate the duties of China's maritime police agencies, including the China Coast Guard, and safeguard China's sovereignty, security, and rights and interest. The MPL has potentially far-reaching application, as China claims extensive maritime areas off its mainland and in the South China Sea. This expansive application of maritime law enforcement jurisdiction is problematic given that most of China's maritime claims are inconsistent with international law. To the extent that the MPL purports to assert jurisdiction over foreign flagged vessels in disputed areas or on the high seas, it contravenes international law. Numerous provisions of the MPL regarding the use of force are also inconsistent with international rules and standards governing the use of maritime law enforcement jurisdiction, as well as the UN Charter's prohibition on the threat or use of force against the territorial integrity or political independence of any state. China could use the MPL as a subterfuge to advance its illegal territorial and maritime claims in the South and East China Seas and interfere with coastal State resource rights in their respective exclusive economic zone.
Every U.S. administration from Truman to Kennedy recognized Japanese residual sovereignty over the Senkaku Islands. U.S. policy changed, however, to one of neutrality under the Nixon administration during the negotiations of the Okinawa Reversion Treaty. The change in policy was not based on a belief that Japan did not retain sovereignty over the islands, but rather was done to appease the Republic of China over its impending expulsion from the United Nations and to break an impasse of the ongoing textile negotiations with Taipei. The administration's overtures to China, culminating in Nixon's visit to China contributed to the decision. Since 1972, the U.S. has recognized Japan's administrative control over the Senkakus but has not taken a position on the competing sovereignty claims. In June 2020, the City Council of Okinawa changed the name of the Senkakus to strengthen Japanese control and demonstrate that the islands are Japanese territory. This action by the City Council provides the Biden administration the opportunity to acknowledge the name change and recognize Japanese sovereignty over the Senkakus. China is the greatest threat to U.S. and Asian security, and support for Japan as a front-line state balancing China's burgeoning military power is long overdue. Recognizing the islands as Japanese territory will strengthen the U.S.-Japan alliance and enhance regional strategic security and stability.
For over twenty years, the People's Republic of China (PRC) has stonewalled efforts by the Association of Southeast Asian Nations (ASEAN) to negotiate a binding Code of Conduct that would form the basis for a peaceful and durable solution to the territorial and maritime disputes in the South China Sea (SCS). At the same time, the PRC engaged in a series of malign activities, to include the militarization of several reclaimed artificial islands, that have forever changed the landscape and status quo of the SCS. In 2020, the PRC unexpectedly called on ASEAN to resume the negotiations as soon as possible. The PRC's sudden urgency to conclude a code at the earliest opportunity begs the question—is it still in ASEAN's interests to conclude a binding Code of Conduct? This article concludes that, given that the status quo in the SCS has been significantly changed in favor of the PRC, Beijing has nothing to lose and everything to gain by concluding a Code of Conduct that solidifies its claims and advances its national security and economic interests, all at the expense of ASEAN.
China recently enacted amendments to its 1983 Maritime Traffic Safety Law, expanding its application from "coastal waters" to "sea areas under the jurisdiction of the People's Republic of China," a term that is intentionally vague and not defined. Many of the amendments to the law exceed international law limits on coastal State jurisdiction that would illegally restrict freedom of navigation in the South China, East China, and Yellow Seas where China is embroiled in a number of disputed territorial and maritime claims with its neighbors. The provisions regarding the unilateral application of routing and reporting systems beyond the territorial sea violate UNCLOS. Similarly, application of the mandatory pilotage provisions to certain classes of vessels beyond the territorial sea is inconsistent with UNCLOS and IMO requirements. The amendments additionally impose illegal restrictions on the right of innocent passage in China's territorial sea and impermissibly restrict the right of the international community to conduct hydrographic and military surveys beyond the territorial sea. China will use the amended law to engage in grey zone operations to intimidate its neighbors and further erode the rule of law at sea in the Indo-Pacific region.
China is reportedly developing long-range cruise missiles that can be fired from standard shipping containers loaded on merchant vessels. China is also converting heavy-lift civilian ships and roll-on roll-off (RORO) ferries to serve as de facto amphibious assault ships to support People's Liberation Army (PLA) amphibious operations. While none of these activities are illegal per se, they do raise potential concerns under the law of naval warfare. Only warships can engage in offensive belligerent rights during an international armed conflict. Using merchant vessels to engage in belligerent rights would violate international law unless China first converts the vessels into warships in accordance with the rules set out in the 1907 Hague Convention VII. Using converted commercial ships to directly support military operations increases the risk that all Chinese-flagged container ships and RORO ferries will be targeted as military objectives given that it will be difficult, if not impossible, to distinguish between a converted and non-converted vessel.
The Democratic People's Republic of Korea (DPRK) has been under U.N. sanctions since 2006 to dissuade the DPRK from continuing its nuclear weapons and ballistic missile programs. Nonetheless, the DPRK has evaded these sanctions, particularly through unlawful ship-to-ship transfers of refined petroleum products and coal. DPRK sanctions evasion, particularly as it relates to maritime activities, remains a critical issue that allows the DRPK government to continue its pursuit of nuclear weapons and its testing and amassment of ballistic missiles. Given the DPRK's use of maritime tactics to evade sanctions, maritime interdiction is the most effective way to counter illicit DPRK maritime activities. However, the current maritime interdiction authorities under the various U.N. Security Council resolutions are flawed. The international community can better enforce U.N. sanctions at sea if the Security Council authorizes non-consensual boardings of suspect vessels beyond the territorial sea.
In 2017, the International Committee of the Red Cross published an updated Commentary on the Second Geneva Convention. One question left unanswered by the new Commentary is the relationship between international humanitarian law and other international treaties applicable to the maritime domain, such as the U.N. Convention on the Law of the Sea (UNCLOS) and treaties adopted by the International Maritime Organization (IMO). The Second Geneva Convention establishes a legal framework for the humane treatment and protection of victims of armed conflict at sea—the wounded, sick and shipwrecked. There are circumstances, however, in which the belligerents do not have the capability or capacity to conduct adequate search and rescue operations after an engagement. In such cases, the Second Geneva Convention allows the parties to the conflict to supplement their search and recovery efforts by requesting assistance from neutral merchant vessels. However, there is no obligation on the part of the belligerents to do so, nor is there an obligation on the part of a neutral to respond to such a request. Nonetheless, customary international law recognizes an affirmative obligation of mariners to render assistance to persons in distress at sea to the extent that they can do so without serious danger to their ship, crew, or passengers. A number of IMO treaties codify this long-standing custom, as does UNCLOS. Still, numerous legal questions remain. For example, does the outbreak of hostilities terminate or suspend the applicability of these maritime conventions or do they remain in effect, in part or in their entirety, during an armed conflict at sea? Do different rules apply between parties to the conflict and parties to the conflict and neutral powers? Are parties to the conflict and neutral powers nevertheless bound during an armed conflict at sea by the provisions of the maritime conventions that reflect customary international law? This article analyzes these questions in light of applicable international law and U.S. state practice. The article concludes that the peacetime duty to render assistance to mariners in distress at sea remains in effect during an armed conflict as a treaty obligation and/or as a matter of customary international law in three circumstances: (1) neutral parties must render assistance to other neutral parties; (2) neutral parties must render assistance to belligerent parties upon request or sua sponte; and (3) belligerent parties must render assistance to neutral parties.
Five of the most contentious territorial disputes that plague the Asia-Pacific today have their roots in the San Francisco Peace Treaty. The treaty required Japan to renounce all claims with regard to a number of lands, but failed to declare a successor State to these lands. Over the years, these disputes have intensified as a result of rising nationalism and a growing demand for ocean resources. This article discusses the merits of Japan's claims to the Kurile Islands, Liancourt Rocks and Pinnacle Islands and concludes that Japan's claims are superior to those of the other claimants.
In August 2014, a Chinese fighter aggressively intercepted a U.S. Navy surveillance plane over the South China Sea. This incident once again raises the issue of the legality of conducting military activities in and over the exclusive economic zone (EEZ) without coastal State notice or consent. All nations have a right under international law to conduct military activities in foreign EEZs. The article discusses the legal bases for conducting these activities and reviews some of the more prominent arguments used by States that purport to regulate such activities in the EEZ. It concludes that the right to engage in military activities in the EEZ is consistent with international law, both customary and conventional, as well as State practice.
