Weihai Li- School of Law, China University of Political Science and Law, Beijing, China
Maritime security is an essential component of national security, and the effective maintenance of China’s maritime security urgently needs a complete guarantee of the rule of law. Since the founding of the People’s Republic of China in 1949, the construction of domestic law on maritime security has undergone three phases: slow development, formation and refinement. Although the rule of law in the seas has been constantly improved, it has provided essential safeguards for maintaining China’s maritime sovereignty, security, and rights and interests. It has facilitated the development of maritime undertakings. However, it still faces problems such as the lack of an explicit constitutional basis, the law of the sea is not an independent departmental law, the absence of the fundamental law of the sea, the lack of operability of marine legislation, and the existence of some gaps in marine laws. Given the problems with the current domestic law on maritime security, it is necessary to make improvements in the following areas: adding marine provisions to the Constitution, formulating the fundamental law of the sea and other marine laws, improving local marine laws, and introducing implementing regulations.
1 Introduction
Maritime security can be understood as a concept referring to the security of the maritime domain and as a set of policies, regulations, measures and actions to ensure the security of the maritime domain. Maritime security is geopolitical, as it involves projecting public power beyond external boundaries within the global maritime domain (Germond, 2015). Maritime security involves all aspects of human security, peace and stability, economic prosperity, environmental health, social equity and security, and the pursuit of maritime security calls for the global community, States, communities, groups and individuals to work together, contribute their wisdom and unite their efforts to provide a sustainable path to maritime security (Li, 2023). Maritime security is also a popular term in current international relations (Bueger, 2015). This term attracts extensive academic discussion, covering security studies, international trade, environmental protection, climate change, and global governance. The term’s popularity reflects an emerging consensus in the international community that recognizes the growing challenges facing the world’s seas and the urgent need for serious efforts to address them.
It is as old as human interaction with the sea, whether as fishermen, traders, or in any other capacity. Maritime security has a long history (Amirell, 2016). Over the past few decades, research on criminal activities, illegal acts and violence at sea (e.g., illegal fishing, piracy and robbery at sea, arms and drug smuggling, and human trafficking) has increasingly explored the interplay between economic, social, political and geopolitical factors that have transformed maritime security (Germond and Mazaris, 2019). The international maritime security order is shifting from a hegemonic pattern dominated by the United States and its allies to a multinational pattern. As a rising maritime power, China’s continued strengthening of its economy and maritime power is a significant influence on the future maritime security environment in Asia, and its increased maritime power will inevitably have an impact on the existing maritime security order (Bateman, 2015; Sun et al., 2021). The United States and Japan have linked the East and South China Seas in their maritime strategies to prevent China from continuing to expand its offshore presence (Odgaard, 2017). China is facing problems in the East China Sea, the South China Sea, and port disputes along the Belt and Road Initiative. The situation will likely become even more critical (Sun et al., 2021). Threats from the sea include non-traditional issues such as piracy, terrorism, environmental protection and natural disasters. There are also traditional security threats, including military aggression, the maintenance of sovereignty and sovereign rights, and the security of sea lines of communication. Maritime security is the basis for regional economic development and national security (Joshi, 2023). Peaceful coexistence and active defense are China’s main principles for maintaining maritime security (Odgaard, 2017).
As a large country with both land and sea resources, China is one of the countries with the longest borders, the largest number of neighboring countries and the most complex border situation in the world (Zhu, 2015, p. 103). For a long time, China’s maritime security has faced complex challenges, especially since the Opium War, when many large-scale invasions by foreign enemies came from the sea. After founding the People’s Republic of China in 1949, the Chinese government has increasingly emphasized the rule of law on the sea. Especially after the reform and opening-up, China’s marine legislation has developed rapidly, and many maritime laws and regulations have been formulated. Since entering the 21st century, in the face of the complex changes in the maritime security situation, China has strengthened the construction of maritime military forces, enhanced its ability to defend its national sovereignty and territorial integrity, and actively improved the legal system of the seas to provide a solid domestic rule of law for the effective maintenance of maritime security. In the era of building a strong maritime country, the realization and maintenance of national maritime security interests are undoubtedly inseparable from the guarantee and support of legal norms (Tao and Wang, 2019). China’s experience shows that it is vital to ensure that the domestic rule of law is in line with trends in global governance (Xing et al., 2022).
Although the rule of law plays an extremely important role in the construction of China’s maritime security, there is a lack of systematic research on China’s domestic law on maritime security. Therefore, from the perspective of China’s domestic law, this paper first combs through the current literature on maritime security research, then reviews the history of the construction of domestic law on maritime security, including the three phases of slow developing, forming and refining. On this basis, it analyzes the issues existing in China’s domestic law on maritime security and further proposes recommendations to improve the domestic law on maritime security, hoping to provide inspiration and guidance for the construction of domestic law on maritime security.
2 Literature review
Scholars of international relations have argued that the idea of maritime security should guide the construction of a legal system for maritime security. Scholars introduce the schools of international relations on security issues and the main contemporary national security concepts and sort out the vein of the maritime security concept (Liu and Xv, 2011; Zhang Y., 2022). In On China’s Maritime Power, the author discusses China’s maritime security ideology from the perspectives of the characteristics of China’s maritime power and the principles of the expansion of China’s maritime power, and puts forward countermeasure proposals for China’s maritime security in the first half of the 21st century (Zhang, 2014). In 2014, China put forward the Overall National Security Outlook (ONSO). National security has both traditional and non-traditional security. China faces the challenge of the interplay of traditional maritime security and non-traditional maritime security risks, and the maintenance of maritime security is an important content and basic embodiment of the ONSO (Qing, 2015; Zhang H. W., 2022). China needs to change its traditional thinking on maritime security, implement the concept of a maritime community based on mutual consultation and sharing, and establish comprehensive national security and common security for humankind (Sun et al., 2021).
Scholars of the law of the sea have made analyses from the perspective of the rule of law for maritime security. Firstly, recognizing the situation and challenges facing maritime security is a prerequisite for improving the rule of law system for maritime security. Based on a systematic analysis of traditional and non-traditional maritime security challenges, the scholar distilled the new challenges to China’s maritime security, focused on analyzing some of the deficiencies in the current domestic marine legislation, and put forward some constructive suggestions (Zhang H. W., 2022). Scholars have analyzed the situation of China’s maritime security and the causes of threats from the perspective of globalization and explained why they chose to apply the rule of law to safeguard maritime security through specific cases such as piracy on the high seas and military surveying activities (Jin, 2010; Man, 2014). Scholars have proposed a path for legalizing the marine national strategy, discussing how to achieve the rule of law for the sustainable development of the seas in terms of institutional mechanisms (Man, 2014; Zhai, 2015). In the above representative literature, although the complex situation and challenges facing China’s maritime security have been analyzed from different perspectives, the conclusion that “the rule of law is the best measure to deal with maritime security” has been put forward.
Secondly, scholars have introduced the stages of development that China’s maritime strategy has gone through, the core concepts embodied in its maritime strategy, and the specific manifestations of its promotion of innovation in the international law of the sea system, which is of great significance to the understanding of its maritime strategy and marine legislation, and provides China with helpful experience in promoting international maritime security legislation (Yao, 2021). United Nations Convention on the Law of the Sea (UNCLOS) is the charter of the international law of the sea, and a fair and reasonable interpretation of UNCLOS is a prerequisite for its accurate application and the safeguarding of rights and interests. It provides theoretical guidance for China to safeguard its maritime security under the framework of international law, build up a system for interpreting the rules, and strengthen its capacity for discourse. It also contributes to promoting the fundamental role of UNCLOS in the international governance of the seas (Zhang, 2021; Yang, 2022).
Thirdly, the seas are open to all humankind and require the joint participation of all countries in their governance. Maritime security is an essential component and a strong guarantee of ocean governance (Aarstad, 2017). Ocean governance and maritime security translate into a practice of controlling ocean space, leading to a certain territorialization of the seas, not so much from the point of view of sovereignty and jurisdiction as from the point of view of function and norms (Germond and Germond-Duret, 2016). Scholars comprehensively introduce the generative background, connotation, characteristics, starting point and foothold, important role, and basic methodology of the rule of law relating to foreign affairs in the seas, which theoretically supports the construction of the rule of law for China’s maritime security to the international level and provides a Chinese program for global ocean governance (Wang G., 2022; Wang L., 2022; Yang, 2023). The rule of law relating to foreign affairs is an integral part of China’s rule of law system for maritime security, and it is a crucial way to promote the fair and reasonable distribution of maritime rights and interests by the international community, and to build a harmonious global ocean governance system. However, the current research on China’s foreign-related marine rule of law is insufficient (Yao, 2022; Bai and Li, 2024). Scholars have introduced the main problems in constructing China’s marine legal system, which are highlighted by the lack of a fundamental law on the seas, insufficient coordination among laws, and insufficient forward-looking legislation (Yang, 2021; Chu and Guo, 2023).
The above literatures have expressed their views on the construction of domestic laws on maritime security more from specific areas and macro perspectives, without sorting out and analyzing the specific problems that exist in them, and without putting forward systematic recommendations. Scholars have introduced the purpose, basic features, and essential connotations of China’s maritime security policy and strategy, which provide a basis for understanding the construction of China’s maritime security legal system, noting that China does not seem to have a long-term marine policy (Ji, 2022). The global nature of the maritime domain has led to the transnational nature of many current maritime security threats (immigration, drug smuggling, piracy) (Germond, 2015). The maritime security order is an integral part of the international security order (Sun et al., 2021). The future global maritime strategy is under the rule of law and implemented under UNCLOS. Countries should develop the seas peacefully, participate in ocean governance harmoniously, deal with sea-related disputes more through consultation, and create a community of destiny in the seas. China must start with sound marine security laws if it wants to realize the sustainable and stable development of its marine strategy.
3 Review of domestic law
Since the founding of the People’s Republic of China in 1949, the construction of China’s marine rule of law has continued to improve, and is an essential element in the construction of China’s rule of law; in particular, it has made great strides in the more than forty years since the reform and opening up, and has provided a kind of institutionalized legal safeguard for maintaining China’s maritime sovereignty, security and rights and interests in the seas, and has contributed to the promotion of maritime undertakings. China has not yet introduced the Maritime Safety Law, and provisions on maritime safety are scattered in other maritime laws. The development of domestic maritime security laws can be divided into the following three stages.
3.1 Slow development stage (from 1949 to 1979)
In this stage, there was a gap in China’s marine laws. There was no formal legislation on the seas, but rather statements, ordinances and regulations issued by the Chinese government declared and defended the country’s sovereignty, security and rights and interests. The Chinese government issued only a small number of sea-related regulations and rules in individual areas, such as the Interim Regulations Harbor Management in 1954, the Order on the Closed Areas of the Bohai Sea, the Yellow Sea, and the East China Sea for Machine Trawl Fisheries in 1955, the Provisions on the Passage of Merchant Vessels through the Old Tieshan Waterway in 1956, the Rules on Investigation Settlement of Average Accidents in 1959, the Rules for the Control of Non-Military Vessels of Foreign Origin Passing Through the Qiongzhou Strait in 1964, and the Provisions on Port Navigation in 1976 (Jia, 2007).
During this period, one of the most important documents of the Chinese government relating to maritime security was the Declaration on China’s Territorial Sea, issued in 1958. This was the first time that China made a clear statement on maritime rights and interests and maritime security, and its core contents include: first, determining the width of the territorial sea of 12 nautical miles; second, adopting a straight line baseline; third, all foreign aircraft and military vessels are not allowed to enter China’s territorial sea and airspace without the permission of the Chinese government. Its main purpose was to ensure China’s maritime security. Article 1 of Rules for the Control of Non-Military Vessels of Foreign Origin Passing Through the Qiongzhou Strait once again reiterated China’s basic position on the territorial sea system, emphasizing that the rules for passage through the territorial sea had a bearing on the sovereignty of the coastal States and maritime security. However, since China did not publish the baselines of its territorial sea at that time, the territorial sea system was still very imperfect.
3.2 Formative stage (from 1980 to 1999)
3.2.1 Incorporating the relevant UNCLOS rules into domestic legislation
UNCLOS was promulgated in 1982, and China ratified its accession to UNCLOS in 1996, using its relevant provisions as a template for its marine legislation, with some of the provisions of its domestic legislation drawing entirely on the content of the relevant provisions of UNCLOS. China promulgated the Law on the Territorial Sea and the Contiguous Zone in 1992. This law stipulates China’s territorial sea and contiguous zone regime based on the Declaration on China’s Territorial Sea. This law emphasizes the two fundamental elements of the State’s sovereignty over the territorial sea, its right to control the contiguous zone, and the spatial extent of China’s territorial sea and contiguous zone. Since this law was drafted based on the principles of international law, in particular UNCLOS, the basic contents of this law are consistent with the principles and relevant provisions of UNCLOS. This law contains 17 articles, which are 75% similar to the applicable provisions of UNCLOS (Gao, 2004, p. 6).
The 1998 Law on the Exclusive Economic Zone and the Continental Shelf established the legal regime for China’s 200-nautical-mile exclusive economic zone, as well as the legal regime for the continental shelf based on the 200-nautical-mile distance and the natural extension of China’s land territory. This law was also drafted based on UNCLOS, and attention was paid to its convergence with the relevant provisions of UNCLOS (Gao, 2004, pp. 3-18). However, this law does not contain specific provisions on some of the interpretative and operational provisions of UNCLOS relating to the exclusive economic zone and continental shelf. In order to ensure that China enjoys all the rights provided for in UNCLOS and international law, Article 13 specifically provides that the rights China enjoys in its exclusive economic zone and continental shelf shall be exercised in accordance with international law and other relevant Chinese laws and regulations. This law contains 16 articles, 80% of which are similar to those of UNCLOS (Gao, 2004, p. 7). These two laws are the most fundamental marine laws and are essential in safeguarding maritime sovereignty, security and interests (Jia, 2019).
3.2.2 Building a domestic legal system for the seas
During this stage, China issued a series of laws, regulations and government statements to regulate various types of marine activities, gradually forming the basic framework for the rule of law in China’s seas. Laws and regulations on the development, management and protection of marine resources include the Interim Regulation on Fishery Administrative Work in 1979, the Regulation on the Exploitation of Offshore Petroleum Resources in Cooperation with Foreign Enterprises in 1982, the Fisheries Law in 1986, and the Mineral Resources Law in 1986.
Laws and regulations on navigation safety include the Regulations Governing Supervision and Control of Foreign Vessels in 1979, the Regulation on the Administration of Navigable Waterways in 1987, and the Regulations for Navigation Marks in 1995. The 1983 Maritime Traffic Safety Law makes legal provisions for supervising maritime traffic safety and ensuring the safety of ships, facilities, persons and property (The State Oceanic Administration, 2012, p. 49).
Laws and regulations on marine ecological security. The 1982 Marine Environmental Protection Law established a system for managing sources of marine pollution, assessing the marine environment, and imposing penalties for marine pollution. This law is one of the earliest, most direct and most significant marine environmental protection laws in China, laying a legal foundation for protecting the marine environment and playing a pivotal role in constructing a marine ecological civilization (Zou, 1999). In accordance with this law, the State Council also formulated the Regulations on the Control over Prevention of Pollution by Vessels in Sea Waters and the Regulations Concerning Environmental Protection in Offshore Oil Exploration and Exploitation in 1983, the Regulations on the Control over Dumping Wastes into the Sea Waters in 1985, the Administrative Regulation on the Prevention of Environmental Pollution by Ship Breaking in 1988, the Administrative Regulations on the Prevention and Control of Pollution Damage to the Marine Environment by Land-sourced Pollutants, and the Administrative Regulation on the Prevention and Control of Pollution Damages to the Marine Environment by Coastal Engineering Construction Projects in 1990.
In addition, the State Council has promulgated many other sea-related administrative laws and regulations, such as the Provisions Governing the Laying of Submarine Cables and Pipelines in 1989, the Administrative Measures on Foreign Participation in Salvaging Shipwrecks and Sunken Objects in China’s Coastal Waters in 1992, the Regulations on Nature Reserves in 1994, and the Provisions on Administration of Foreign-related Marine Scientific Research in 1996. The Interim Provisions on the Administration of Use of National Sea Waters, jointly issued by the Ministry of Finance and the State Oceanic Administration in 1993, clearly stated that a system of sea area use rights and compensated use should be established, initially setting up a sea area management system (Jia, 2019).
3.3 Refinement stage (from 2000 to the present)
3.3.1 Laws
Against the background of the continuous improvement of China’s level of marine development and utilization, China has successively introduced a series of marine laws. These new laws not only cover all aspects of the development, utilization and protection of marine resources but also involve all aspects of marine management and law enforcement, with some of the legislation filling in the gaps in certain areas (see Table 1). Article 3 of the Law on the Administration of Sea Areas in 2001 stipulates that the maritime areas are owned by the State, and Article 6 provides for the right to use maritime areas registered in accordance with the law is legally protected, which strengthens the rational development, sustainable utilization and effective management of internal waters and territorial seas. The Ports Law promulgated in 2003 is a law regulating the planning, construction, maintenance, operation and management of ports, and Article 3 stipulates that the scope of application shall be a specific range of waters and land areas. The Island Protection Law in 2009 establishes a new legal system for the efficient exploitation and adequate protection of near-shore sea areas and sea islands. The Law on the Exploration and Development of Resources in Deep Seabed Areas in 2016 is the first law regulating the exploration and exploitation of deep seabed mineral resources in areas beyond the national jurisdiction of Chinese enterprises, organizations and individuals, and is also the first law to regulate the deep and international seabed, filling a gap in two of China’s laws (Xinhua News Agency, 2016).
Table 1 Laws related to maritime security in China.
China has reformed its marine law enforcement system since 2017, incorporating the Coast Guard into the People’s Armed Police Force and assuming responsibility for safeguarding the country’s maritime rights and interests and maritime law enforcement (see Table 2). China enacted the Coast Guard Law in 2021, which stipulates the duties and authorities of the Coast Guard and provides a legal basis for the Coast Guard to carry out maritime rights and law enforcement (Liu and Hu, 2024). Although some scholars have questioned specific provisions of the Coast Guard Law as posing a threat to regional maritime security (Kim, 2022), this does not detract from the positive contribution of the Coast Guard Law to China’s maritime security.
Table 2 Responsibility of the China coast guard.
Much of China’s existing marine legislation no longer meets the needs of the maritime security situation and the development of the maritime economy, and some of its provisions are inconsistent with the relevant provisions of UNCLOS and need to be revised. For example, as the Fisheries Law was not compatible with China’s economic and social development, it was revised four times in 2000, 2004, 2009, and 2013; to implement the idea of ecological civilization and the new concept of ecological protection, China revised the Marine Environmental Protection Law five times in 1999, 2013, 2016, 2017, and 2023 (Liu, 2024); and in accordance with the overall requirements for building a strong maritime country and a strong transportation country, the Ports Law was revised three times in 2015, 2017 and 2018; and the Maritime Traffic Safety Law was amended twice in 2016 and 2021 to safeguard the safety of people and property at sea, safeguard the rights and interests of the State, and comprehensively enhance the capacity of management of maritime traffic order.
In addition, marine provisions have found their way into an increasing number of non-specialized marine laws. As a result of the growing importance of maritime issues in the country’s overall strategy and the expanding field of adjustment of China’s laws, more and more laws contain sea-related provisions. In particular, some critical foundational laws also contain sea-related legal provisions. For example, Articles 17 and 23 of the National Security Law include territorial sovereignty, maritime rights and interests, and China’s interests in the international seabed area as essential elements of national security. Articles 247 and 328 of the Civil Code stipulate that the State owns maritime areas and uninhabited islands and that the State protects the right to use maritime areas acquired in accordance with the law, explicitly stipulating the ownership of the seas, which is conducive to the safeguarding of China’s maritime interests.
3.3.2 Regulations and rules
In order to better implement marine laws, the relevant departments have also formulated a series of supporting measures. For example, after the Law on the Exploration and Development of Resources in Deep Seabed Areas, the relevant departments have successively issued the Interim Measures for the Management of Samples for Exploration and Exploitation of Resources in Deep Seabed Areas and the Interim Measures for the Management of Information on Exploration and Exploitation of Resources in Deep Seabed Areas. In China, it is usually the case that the relevant departments formulate some normative documents before formal legislation is enacted to conduct some preliminary exploration for subsequent legislation. In the case of Antarctic governance, for example, the “Law on Antarctic Activities and Environmental Protection” is still in the drafting stage, but provisions on administrative licensing and environmental impact assessment of Antarctic scientific research activities have been introduced one after another. First, it temporarily fills gaps in the law with departmental regulations and rules to regulate and manage Antarctic activities; second, it provides the basis and experience for formal legislation (China National People’s Congress, 2024).
4 Problems with domestic law on maritime security
The elements of the seas have not been incorporated into the Constitution, nor has China formulated a basic law on the seas that is overarching and fundamental, let alone a law on maritime security. At present, China’s legislation on maritime security is scattered in laws and regulations relating to maritime security and rights, maritime ecological and environmental security, maritime transportation security, maritime law enforcement, which runs counter to the comprehensive and sustainable outlook of maritime security (Guo and Yan, 2024).
4.1 Lack of an explicit constitutional basis
At present, 32 countries have marine provisions in their constitutions (Jiang, 1997). To date, China has not included the word “sea” in the Constitution, and the Constitution does not explicitly protect maritime security. The territorial sea is as essential a part of China’s territory as the land territory. However, there is still a big difference between the two in the status of the Constitution, and maritime security is only protected by the common law, but not by the fundamental law of the country—the Constitution. Article 34 of the Common Program of The Chinese People’s Political Consultative Conference, which was the provisional Constitution of the People’s Republic of China in 1949, contains the phrase “coastal fisheries shall be protected and the aquatic products industry shall be developed”, which can be said to include sea-related content; the 1954 Constitution and the 1975 Constitution do not contain any relevant content on the sea; Article 6, paragraph 2 of the 1978 Constitution stipulates that “marine and land resources” shall be owned by all people, which is the most direct and explicit provision on the issue of the sea in the Constitution. Article 9 of the current 1982 Constitution replaces “marine and land resources” in the 1978 Constitution with “natural resources”, and the Constitution still makes no mention of the sea. In the Constitution, terms such as “waters” and “beaches” are hardly representative of the seas (Yi, 2014). Although the Constitution has been amended several times, there is still no amendment concerning the seas, and the provisions on the seas have not improved. This also shows that China’s emphasis on the seas still needs to be improved, that the protection of maritime security has still not been incorporated into the fundamental law of the country, and the status of the law of the sea in the construction of the rule of law in China has not been adequately reflected. This directly leads to the dilemma that China’s sea-related legislation often faces a lack of constitutional basis. In China, other departmental laws are generally based on the Constitution, and “this Law is developed in accordance with the Constitution” is often used. However, there is no similar expression in the laws relating to the seas, which indicates that China’s marine legal system lacks a constitutional basis (Xv, 2008).
4.2 The law of the sea is not an independent departmental law
China’s marine resources are rich in variety and quantity, and its marine administration is complex and burdensome. There are many sea-related departments in China, from a horizontal perspective, including: marine administration, foreign affairs, fisheries, minerals, transportation, maritime commerce, environmental protection, scientific research, and military institutions; from a vertical perspective, they are divided into national centralized management and local hierarchical management. Managing ocean affairs requires handling a variety of complex administrative, civil, commercial, and criminal social relations. The subjects of legal relations include natural persons, legal persons and governmental agencies at all levels. Therefore, the legal system of the seas utilizes different measures, such as administrative, criminal, civil and economic, to regulate different legal relationships, including those between domestic and international actors (Jia, 2019). The legal system usually refers to the organically linked and unified whole formed by classifying and combining a country’s existing legal norms into different legal departments (General Editorial Committee of the Encyclopedia of China, 2002, p. 84). Under China’s legal system, there are divisions of departmental law, such as civil, criminal and international law. In contrast, the law of the sea is not an independent departmental law, but only a part of international law. Each department of law can realize the settlement of disputes under the existing legal system, solve real disputes, and ensure social order as well as the stability of the legal system (Guo, 2022). The fact that the law of the sea, with its different effects and natures, has not become an independent department law makes it difficult to form a coordinated and complete legal system, which is not conducive to the handling of various legal relationships in maritime affairs and makes it difficult to elevate the status of the law on maritime security in the entire China’s legal system.
4.3 Failure to introduce the fundamental law of the sea
In order to effectively safeguard maritime security and strive to build a strong maritime country, it is necessary to strengthen the construction of the rule of law, for which a legal basis is a prerequisite. Although China’s legal system for the seas has been established, it still needs improvement. There is a lack of the fundamental law of the sea, which plays a fundamental role in leading the construction of the rule of law for China’s seas in general and in providing a fundamental legal basis for China’s maritime security. Since the 18th CPC National Congress, the reports of all the CPC National Congress have put forward the requirement of building a strong maritime country and made deployments (Liu, 2024). However, from the perspective of the rule of law in the seas, this deployment has yet to be legalized by formulating the fundamental law of the sea. In terms of ocean strategy, China has long used policy documents as a substitute for legislation. Although policy documents such as China Ocean Agenda 21 and the Functional Divisions of the Sea of the Whole Country have been formulated and implemented, they have yet to be able to play their proper guiding roles due to the lack of legally binding force. China’s marine legislation is relatively decentralized, with many departments formulating marine laws and regulations with different legislative perspectives and departmental interests. Most of the marine legislation is single-item regulations, which mainly safeguard a particular sea area, department or industry, and the scope of adjustment of each law is relatively homogenous, being mainly confined to a particular area and a particular scope of marine governance. At the same time, because the effectiveness of the various departmental laws is equal and because there is no fundamental law to provide them with basic principles and a systematic framework, it is challenging to create a benign interaction between the formulation and implementation of the laws, which not only leads to certain inconveniences in the implementation and application of the laws, but also adversely affects the safeguarding of maritime rights and interests and maritime security. Therefore, although China has initially established a system of marine laws and regulations, it is still not perfect, and in particular, lacks the fundamental law of the sea, which leads the construction of the rule of law for the seas in general and is capable of providing a fundamental legal basis for the maintenance of maritime security (Gu, 2022).
4.4 Inadequate operationalization of marine legislation
China’s current system of rule of law for the seas is not yet sufficiently complete and complementary. Many of the legal provisions are vague, some are abstract and overly principled, and there are no specific regulations and implementation measures to support them after promulgation, nor are there clear implementation standards, and the applicability is poor. Article 58 of the Civil Procedure Law, as revised in 2012, adds “the environment public interest litigation”, which provides for public prosecution of environmental pollution. However, this law lacks specific provisions for determining the burden of proof and the provision of legal aid in the case of marine environmental pollution.
Article 6 of the Law on the Territorial Sea and the Contiguous Zone stipulates that foreign military vessels must obtain prior authorization before entering China’s territorial sea. However, since the promulgation in 1992, there have been no corresponding implementing regulations, nor have there been any clear stipulations on the procedures and methods for the declaration of authorization by foreign military vessels, thus rendering the implementation of this provision virtually impossible. The main purpose of this provision is to safeguard national sovereignty and the security of the territorial sea. The political position that foreign warships must be authorized to enter China’s territorial sea is not an operational provision.
Many elements of the Law on the Exclusive Economic Zone and the Continental Shelf are similarly general and lack operationalization. For example, Article 12 stipulates that China has the right to take measures such as boarding, inspection, arrest, detention and other measures in response to law violations, and may exercise the right of hot pursuit. However, it does not specify the specific department or agency that shall take the measures, in particular, the right of hot pursuit (Yu, 2006), which, in accordance with international law, must be implemented by a specific agency authorized by the law, in strict accordance with the procedures stipulated in the law. Since this law does not specify the specific authorities or institutions that should exercise the right of hot pursuit, it isn’t easy to implement it in practice (Xue, 2011, p. 291). Article 8 stipulates that competent authorities are authorized to establish safety zones around artificial islands, installations and structures to ensure the safety of navigation and the installations. However, it is not clear which authorities are the competent authorities, nor is it clear which procedures and specific operational requirements are necessary to establish safety zones. This provision is a direct replica of UNCLOS, which merely translates international law into domestic law without formulating specific supporting measures, thus rendering the provision unworkable.
4.5 Some legal gaps in the law of the sea
China’s legal norms on the seas are not yet complete, the legal system on the seas is not sound enough, and the system of the rule of law on the seas has not yet been fully established. Although sea-related legislation has been strengthened since the 1980s, and the coverage of marine legislation is expanding, there are still many gaps and no corresponding legislative programs in some of the blank areas (Xue, 2005). In addition, there is little specialized marine legislation in China, many of which are special industry regulations or ordinances. Only a minimal number of laws and regulations deal with the seas. In some areas, laws and regulations relating to the sea are simply a continuation of land-based legislation, with insufficient consideration given to the characteristics of the sea. Provisions relating to marine activities do not treat the sea as a specific object of application, but are mentioned incidentally in the relevant separate laws, with limited scope for application in practice. For example, the Agricultural Law, the Property Law and the Mineral Resources Law, although they contain sea-related norms, do not take the sea as a specific object of adjustment. At the same time, because of the new changes, situations and problems constantly emerging in the current maritime situation, new laws should be formulated, especially for new industries, to fill the legal gaps and effectively protect China’s maritime security and rights and interests.
5 Recommendations for improving domestic law on maritime security
As China is in an important period of building a strong maritime country, facing many challenges to its maritime security, and with a domestic legal system for maritime security that is not yet sound enough to rely on legal measures to safeguard national maritime security effectively, there is an urgent need to take the necessary measures to rapidly improve the capacity to safeguard national maritime security, to promote the rule of law on the seas, and to raise the level of the rule of law in safeguarding national maritime security.
5.1 Incorporating marine provisions into the Constitution
The Constitution is the fundamental law of China, regulating the basic system and fundamental tasks of the country, occupying the dominant position in China’s legal system and having the highest legal authority and effectiveness. The Constitution’s status and significance dictate that, for national marine laws to better fulfill their legal basis, safeguard maritime security and rights and interests, and enhance the status of the seas in the country’s strategic layout, marine provisions must be incorporated into the Constitution. National maritime rights and interests, maritime strategy and marine environmental protection are placed at the level of the country’s fundamental law to respond more effectively to the current complex maritime security challenges. In order to realize the rule of the sea in accordance with the law, so that all sea-related industries can have laws to follow and scientific law enforcement, it is necessary to improve the legal system of the sea, which is in line with the strategy of a strong maritime country and consistent with the international law of the sea, and to raise its status in the national legal system. It is necessary to incorporate marine provisions into the Constitution as soon as possible and enhance marine laws’ effectiveness (Yang, 2024). Since the conditions for a comprehensive constitutional amendment do not exist, the seas can be constitutionalized by drafting a constitutional amendment. The following could be added to the preamble of the Constitution: China’s territory includes the territorial land, the territorial sea, the internal waters and their upper and lower spaces. The word “sea” could be added to Article 9 of the Constitution, thus providing a fundamental legal basis for the protection of marine resources. The explicit provision on the seas in the Constitution will be conducive to safeguarding national security, territorial sovereignty and rights and interests in the seas (Yi, 2014).
5.2 Enactment of the fundamental law of the sea
The fundamental law of the sea is at the core of the law of the sea system. It is an indispensable legal foundation for building a strong maritime country, and an urgent task for improving China’s law of the sea system. The enactment of the fundamental law of the sea can legally confirm China’s basic claims to maritime rights and interests and its basic marine policy, establish a basic maritime institutional framework, rationalize marine legal relations, regulate various types of maritime actions, and provide guidance for China’s response to maritime disputes (Cao and Chu, 2016). China should expeditiously promulgate the fundamental law of the sea, which is the overarching legal system on seas, stipulate the overall planning and goals and tasks of the national strategy for a strong maritime country, set up a comprehensive ocean management organization, promote the implementation of the national ocean policy, establish the basic principles, basic institutions and systematic framework of the seas, and harmonize them with other individual laws and norms, so as to form a sound, reasonable and perfect modern ocean legal system, and to safeguard the country’s maritime rights and interests in practice (Yang, 2021). In the world, formulating the fundamental law of the sea is a trend in marine legislation. Canada promulgated the Oceans Act in 1996, recognizing in the form of domestic law the rights of the seas enjoyed by coastal States as stipulated in UNCLOS and providing a legal basis for the adequate protection of marine rights and interests, thus becoming the first country in the international community to formulate a comprehensive law of the sea (Macdonald, 2018). Since then, coastal States have successively promulgated the fundamental law of the sea, and the United States enacted the Oceans Act of 2000. Japan adopted the Basic Act on Ocean Policy in 2007, and Vietnam enacted the Vietnam Law of the Sea in 2012 (Zhang and Ye, 2013). Indonesia also enacted the Law of the Republic of Indonesia No. 32 of 2014 on Marine Affairs.
The fundamental law of the sea is located at the top of the marine rule of law system, and it integrates and coordinates the construction and development of the entire marine rule of law system. Under the framework of the fundamental law of the sea, through the revision of existing laws, making up for the legislative deficiencies, promoting the supporting legislative work of the legal system, and summarizing, classifying and integrating the sea-related norms dispersed in various administrative regulations and departmental rules, a system is formed that is guided by the principles of the Constitution and centered on the fundamental law of the sea, and that covers the various levels of the near sea, the far sea, the deep sea, the poles, and is composed of laws, regulations, local legislation, departmental regulations, which together form the legal system of the seas.
5.3 Introducing other marine laws
Coastal areas play an essential role in the development of the entire Chinese economy, and at the same time will be subjected to increased pressure on the environment and resources. Coastal areas are located at the junction of land and sea, where human production and life are the most frequent and active and where human-sea interactions and conflicts are the most intense. The ecological environment is fragile, and the necessity and importance of rational development and utilization, as well as effective protection, through the enactment of relevant laws and regulations. China should introduce the “Coastal Areas Protection and Management Law” and the “Law on the Promotion of Marine Economy and Science and Technology” at an early date in order to better implement the strategy of Land and Sea Coordination, and to organically combine the needs of coastal defense with the economic development of the coastal areas, to ensure the joint development of coastal defense and coastal economic development (Feng, 2013).
As China’s international military cooperation and exchanges with countries around the world become more and more frequent, the number of visiting ships and their accompanying personnel is also increasing. There is no explicit law on the entry and exit border inspection of visiting warships, but it is usually done in accordance with the requirements of superiors, which is not in line with the requirements of professionalization and systematization of border management. Therefore, it is necessary to expeditiously formulate a law on the entry and exit border inspection of foreign military ships and aircraft and their accompanying crews (Feng, 2013). Accelerate the legislative work of the Crew Law to realize the effective convergence of international and domestic laws. In addition, relevant laws on Antarctica should be enacted as soon as possible to better fulfill the obligations under the Antarctic Treaty and regulate China’s increasingly active scientific research activities in the Antarctic. Laws related to the international seabed area should be introduced, balancing exploitation and protection, and domestic legislation should be adopted to effectively fulfill the obligations of the sponsoring countries and exploit the resources in the area in an orderly manner. It is necessary to keep up with the latest developments of science and technology in the marine field and the industrial market, and scientifically carry out forward-looking legislative research, especially to strengthen the legislation of key and emerging fields in the sea, and the new round of development process of marine technology and industry mainly characterized by intelligence and unmanned is at an accelerated stage, and in the research of the “Shipping Law” and other relevant legislation, the possible legal effects brought by the changes in science and technology and the industry should be taken into full consideration, and efforts should be made to obtain legislation with forward-looking effects.
5.4 Improving local marine laws
Local marine legislation is an integral part of the construction of China’s marine legal system. On the one hand, national marine laws and regulations need to be implemented through local marine legislation. For example, after the promulgation of the Law on the Administration of Sea Area, Liaoning, Shandong, Zhejiang, Fujian, and other provinces have issued their regulations or ordinances on the administration of sea area utilization according to local specificities. In addition to the relevant systems stipulated in the Law on the Administration of Sea Area, some of the local regulations have also made provisions on issues that are not clearly defined in this law, such as determining the coastline, managing the collection of sea area use fees, managing the right to use the sea area and protecting the ecological environment of the sea area. On the other hand, flexible and innovative local marine legislation can be explored for the national marine legislation and promote the continuous adjustment and development of the national marine legal system, which in turn plays a positive role in the improvement of the national marine legal system (China Institute for Marine Affairs, 2012, p. 43). Although China has not yet formulated a national coastal area management law, the Jiangsu Province Coastal Area Management Regulation in 1991 and the Hainan Special Economic Zone Coastal Area Protection and Development Management Regulation in 2013 are important references for the formulation of national laws.
At the same time as improving local marine laws, the focus should be on strengthening support and guidance for the relevant industrial departments, improving their legislative level, synthesizing the successful experiences of various coastal areas in marine legislation, and selecting the best ones for inclusion in national legislation. In addition, some of China’s coastal provinces, such as Liaoning, Shandong, Guangdong, Shanghai, and Hainan, undertake important foreign exchange tasks, and in China’s neighboring sea areas, there are many complex problems, especially involving the attribution of islands and the delimitation of jurisdictional waters, which are directly related to the national maritime security and maritime interests, these local marine laws must be based on the provisions of the international law of the sea, so that they can better resolve conflicts and reduce the risk of conflict.
5.5 Introducing implementing regulations
China’s laws usually contain only provisions of principle, and it is necessary to formulate complementary implementation measures and methods to enhance their operability. China should expeditiously formulate corresponding implementing rules or regulations to ensure that the laws are truly implemented. Formulate supporting regulations and implementing rules for the Law on the Territorial Sea and Contiguous Zone and the Law on the Exclusive Economic Zone and the Continental Shelf, such as the Measures for the Administration of Innocent Passage of Foreign Warships through the Territorial Sea of China, the Rules for Overflight and Navigation in the Exclusive Economic Zone, the Regulations on the Safety of Traffic in the Exclusive Economic Zone, and the Regulations on the Construction of Artificial Structures in the Exclusive Economic Zone. The establishment of a separate navigation system for ships transporting hazardous chemicals or toxic and harmful substances has made the necessary legal preparations to regulate the navigation of foreign ships in waters under China’s jurisdiction, prevent foreign enterprises and ships from infringing on the resources of China’s exclusive economic zone and continental shelf, and prevent foreign military vessels and aircraft from engaging in unlawful military activities that jeopardize China’s national security in China’s territorial waters.
Formulate the Measures for the Implementation of Boarding and Inspection of Illegal Ships, unify the applicable laws for the right of boarding and the right of hot pursuit, and stipulate the law enforcement agencies and the specific procedures and methods for carrying out boarding, inspection, arrest, to facilitate the implementation of the law by the implementing agencies, and make it easier for foreign ships to comply with the relevant provisions. In the litigation of marine environmental pollution damage, the authority of administrative subjects to claim compensation should be determined, the institutions and organizations entitled to file lawsuits should be clarified, and it should be stipulated that a private subject can file a lawsuit when the state administration is unable or unwilling to perform. At the same time, detailed provisions should be made on the burden of proof and the relationship of causality in lawsuits (Zhang, 2015). In addition, it is necessary to have an accurate grasp of the characteristics and changing patterns of fishery resources to determine the allowable catch of fishery resources based on scientific analysis, take into account economic, social and ecological factors, and allocate the allowable catch of fishery resources in accordance with the type of fishery resources, the time of operation, the location of the sea area, and the current fishery management system.
6 Conclusion
In the course of its rapid rise, China is facing unprecedented opportunities and challenges, particular the increasing prominence of maritime security in China’s ONSO. Since the 18th CPC National Congress, China has attached great importance to constructing a strong maritime country. Accelerating the construction of a strong maritime country is a fundamental guarantee for safeguarding national security and maritime rights and interests. China’s national security is steady in the land direction, and threats to national security interests come mainly from the maritime direction. The report of the 20th CPC National Congress not only included marine security in the critical areas of national security for the first time, but also put the rule of law system as the first to improve the national security system. China, as a country moving from maritime great to maritime power, with the Belt and Road Initiative and the Maritime Community of Common Destiny, the rule of law has become a priority for safeguarding China’s national maritime security. Strengthening research on the rule of law in China’s maritime security is not only a critical action to implement the ONSO, but also an important initiative to actively respond to the construction of China under the rule of law. How effective it is will impact the realization of China’s strategic goal of becoming a strong maritime country and on the effectiveness of China’s participation in global ocean governance and the maintenance of the world’s maritime security order.
From China’s domestic law perspective, the paper first conducts a literature review to summarize and evaluate the current research on China’s maritime security and its rule of law construction. The construction of China’s domestic law on maritime security is divided into three stages, namely, the slow development stage from 1949 to 1979, the forming stage from 1980 to 1999, and the refining stage from 2000 to the present, and the construction of the rule of law in each of these stages is introduced and explained respectively. However, it still faces problems such as the lack of an explicit constitutional basis, the law of the sea is not an independent departmental law, the absence of the fundamental law of the sea, the lack of operability of marine legislation, and the existence of some gaps in marine laws. Given the problems with the current domestic law on maritime security, it is necessary to make improvements in the following areas: adding marine provisions to the Constitution, formulating the fundamental law of the sea and other marine laws, improving local marine laws, and introducing implementing regulations. The paper mainly focuses on the perspective of domestic law, but in the future, it will also combine with international law and utilize a systematic and comparative approach to comprehensively construct China’s maritime security legal system.
Author contributions
WL: Writing – original draft, Writing – review & editing.
Funding
The author(s) declare financial support was received for the research, authorship, and/or publication of this article. This work was supported by China’s National Social Sciences Foundation (No.17ZDA146).
Conflict of interest
The authors declares that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest.
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Keywords: the rule of law, maritime security, the domestic law, problems, improvements
Citation: Li W (2024) Building the rule of law for maritime security in China: a domestic law perspective. Front. Mar. Sci. 11:1438690. doi: 10.3389/fmars.2024.1438690
Received: 26 May 2024; Accepted: 28 June 2024;
Published: 10 July 2024.
Edited by:
Yen-Chiang Chang, Dalian Maritime University, ChinaReviewed by:
M. Jahanzeb Butt, Shandong University, ChinaHongyun Huang, Shandong University, China
I. Gusti Ngurah Parikesit Widiatedja, Udayana University, Indonesia
Copyright © 2024 Li. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY). The use, distribution or reproduction in other forums is permitted, provided the original author(s) and the copyright owner(s) are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.
*Correspondence: Weihai Li, weihaili@cupl.edu.cn