China’s National People’s Congress Standing Committee passed a law on January 22, 2021, authorising its coastguards to open-fire on foreign vessels in the contested waters around its periphery. The law empowers its coastguards to use all necessary means to stop or prevent threats from foreign vessels and details the circumstances for using different weapons - hand-held, shipborne and airborne.
It also allows the coastguards to demolish other countries’ structures built on Chinese-claimed reefs, board and inspect foreign vessels and create temporary exclusion zones to stop other vessels from entering the Chinese-claimed waters.
The Chinese coastguard enjoyed most of these provisions before the ratification of the National Coastguard Law. But this legislation provides adequate legal backing to them on how to use force, assert sovereignty and deal with the regional and extra-regional actors.
Also, these practices are not unique to the Chinese coastguard. For instance, Vietnam expanded its coastguards’ role by empowering it to open fire to “protect the sovereignty and sovereign rights in defence and security situations,' to warn ships operating “illegally” in its territorial waters.
Regional and extra-regional stakeholders have reacted to China’s new Coastguard Law. The US State Department expressed concerns over the language of the law and claimed that it could be used to intimidate China’s maritime neighbours. The Philippines’ Foreign Secretary, Teodoro Locsin Jr., tweeted that the new Chinese law “is a verbal threat of war to any country that defies” it. The Philippines has also filed diplomatic protests against China for its coastguard legislation. Japan’s Foreign Minister Motegi Toshimitsu claimed, “Japan is staying alert and paying close attention to its effect on us. I believe the law should not be used in a way that violates international law.”
The 1982 United Nations Convention on Law of the Seas doesn’t contain a clear ruling on the Maritime Law Enforcement agency’s (MLE) use of force. This gap was addressed, up to an extent, in 1999 by the International Tribunal for the Law of the Sea (ITLOS) by establishing rules for the MLE’s use of force. Although ITLOS remains the primary governing principle, the states apply domestic law for policing maritime activities.
Wang Wenbin, China Foreign Ministry’s spokesperson, also highlighted this when he said that the Coastguard Law “is a normal legislative activity of the [National People’s Congress]. The relevant contents of the draft are in line with international conventions and practices of many countries. China’s policy and position on maritime issues remain unchanged.”
Three ambiguities in the law
But there are three ambiguities within the Chinese law that merits greater attention. One, the use of the words “waters under national jurisdiction.” The National Coastguard Law’s Article 3 applies to the coastguard’s official activities in China’s “jurisdictional waters.” The law’s previous draft defined the term as China’s “internal seas, territorial sea, contiguous zone, exclusive economic zone, continental shelf, and other waters under the People’s Republic of China’s jurisdiction.” Furthermore, “internal seas” was also defined as the seas on the landward side of China’s maritime baselines. But these explanations were removed from the final draft, intentionally keeping it undefined.
China claims over 80 per cent of the South China Sea through its “nine-dash line”, which stretches over 2000 km from the mainland to Indonesia and Malaysia. It implies that the Chinese coastguard, which already operates in the South China Sea’s contested water, are now legally empowered to use force through firearms, shipborne and airborne weapons in this region.
Article 49 states that the officers (in charge) may use firearms directly if there is no time to issue a warning or if a warning may lead to more severe consequences. Furthermore, Article 50 requires the officers to “reasonably assess the necessity in using firearms,” according to the “nature, extent, and urgency” of the danger posed by the unlawful activities.
But, the draft version had an article that required the coastguards to shoot below the vessel’s waterline during an open fire. This provision was removed from the Coastguard Law’s final version. The Chinese coastguards can misuse Article 49 to fire without warning.
Moreover, as Southeast Asia expert Collin Koh highlights, Article 50 is open-ended and left to the coastguard’s interpretation. It increases the risk of potential abuse by on-scene coastguard commanders. The two articles combined have an escalatory potential and could impact the regional stability on China’s periphery, especially in the South China Sea. The probability for escalation of the crisis is the highest if the Chinese coastguards misuse this law in the future.
These three ambiguities, together, could make China’s maritime periphery – the Yellow Sea, the East China Sea, the Taiwan Strait and the South China Sea – a more dangerous place. The new law may well become detrimental to regional security and could perhaps also impact the final phase of the South China Sea’s Code of Conduct negotiations.
(Suyash Desai is a research analyst with the China Studies Programme at the Takshashila Institution)
Disclaimer: The views expressed above are the author’s own. They do not necessarily reflect the views of DH.