THE Standing Committee of China’s National People's Congress, the highest legislative body in China, passed the Law of Coast Guard on January 22 and it was enforced on February 1, 2021. China has been commenting on the draft law since late 2020; however, it was announced just two days after Trump stepped down from the presidency and Biden took office. The approval for the China Coast Guard Law at this time addresses the following issues:
First, China wants to take advantage of the opportunity. When Mr. Trump was still president, China would not be foolish to “anger” Mr. Trump who has been known for making very sudden and unpredictable decisions.
For President Biden, it is difficult to pay attention to foreign policy while stabilizing domestic issues such as the Covid-19 pandemic, the economy and post-Trump political problems. This is an opportunity for China to take advantage without fear of U.S. reaction.
Secondly, this can also be seen as a "deterrent" to countries that have maritime disputes with China such as Japan in the East China Sea and many Southeast Asian countries in the South China Sea.
Thirdly, this is also an action to “probe” the U.S. response under the new U.S. administration to see the possibility of concern and involvement toward the South China Sea.
China's Coast Guard Law creates a lot of concerns for the world. Article 22 of this law empowers the Chinese Coast Guard and the use of weapons when national sovereignty, sovereign rights and jurisdiction are infringed by foreign organizations or individuals.
China’s Coast Guard can now use weapons in "waters under the jurisdiction of China" and "territorial waters of China." However, the relevant provisions of this Law do not specify which areas are under "Chinese jurisdiction."
Based on China's claims, we can see that Beijing claims jurisdiction to over 3 million square kilometers of marine space, commonly referred to as China’s “blue national territory.” This area includes Bohai Bay; a large part of the Yellow Sea; The East China Sea reaches as far as the eastern waters of the Okinawa Trough, including the waters around the disputed Senkaku/Diaoyu Islands; and all waters in the "Nine-Dash Line" in the South China Sea.
Article 1 of the China’s Coast Guard Law provides that the enactment of this Law is aimed at “protecting national sovereignty, national security and maritime entitlements.” However, since 2009, Beijing has introduced its so-called "Nine-Dash Line" claim in the South China Sea. The 2016 Arbitral Tribunal's ruling in the Philippines vs. China affirms that China's claim to “historic rights” within “Nine-Dash Line” is illegal. Accordingly, any measure to enforce Chinese law in an area with China’s illegal claims such as the "Nine-Dash Line" would also be illegal.
Board and inspect
Under the terms of the new China Coast Guard Law, the Chinese Coast Guard could board and inspect any foreign fishing vessel, survey or research found to be operating anywhere in the “Nine-Dash Line,” (Article 18). If they refuse to comply, armed personnel will board the ship to force them out or be arrested (Article 47). The Chinese Coast Guard could dispatch units to dismantle structures on all terrains controlled by Vietnam, the Philippines and Malaysia in the Spratly Islands (Article 20). Similarly, in the East China Sea, the Chinese Coast Guard would go to the Senkaku Islands and “expel” any Japanese ships they encounter (Article 17). In the Yellow Sea, East China Sea and South China Sea, the Chinese Coast Guard would chase U.S. ocean surveillance ships such as the USNS Impeccable and hydrological survey ships such as the USNS Bowditch for conducting “illegal activities” within the EEZ of China (Article 21).
China’s Coast Guard Law violates international law
China’s Coast Guard Law violates international law, including the basic principle specified in both the United Nations Charter and UNCLOS, which is to use the ocean for the purpose of peace (Article 88 UNCLOS, and to not use force in international relations (Article 2 (4) U.N. Charter).
In addition, Articles 74 (3) and 87 (3) of the United Nations Convention on the Law of the Sea or UNCLOS make it clear that Party States “in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.”
Therefore, China, as a member of the United Nations Convention on the Law of the Sea, shall follow and abide by this principle , and must not use any force and its military beyond what is legal under international law.
The Saiga Case by the International Tribunal for the Law of the Sea or TLOS in 1999 also made clear: (i) the use of force must be avoided as far as possible; (ii) where force is unavoidable, it must not go beyond what is reasonable and necessary, and (iii ) the use of a weapon should not endanger human life.
Many countries have opposed this China’s law. The Philippine government filed a diplomatic protest describing the law as “threat of war.”
U.S. State Department spokesperson Ned Price told reporters that: “the United States joins the Philippines, Vietnam, Indonesia, Japan, and other countries in expressing concern with China’s recently enacted Coast Guard law which may escalate the tension of the ongoing territorial and maritime disputes.”
Enforcing this law would be bad foreign policy for China. Beijing will alienate neighboring countries, further pushing them closer toward China's rivals, the U.S. and Japan.
This move by China increasingly undermines the confidence of the concerned countries and makes it more difficult to reach agreement in the Code of Conduct negotiation between ASEAN and China.
International community must protest
Philippine Foreign Affairs Secretary Teodoro Locsin Jr. said China’s new law “is a verbal threat of war to any country that defies [it].”
In this context, there is a need for a strong response to China's Coast Guard Law from the claimant states in the South China Sea and other countries. They should strongly protest through a note to Beijing, asserting that China's law poses many illegal threats and risks escalating tensions in the disputed area. They can call on China to amend or terminate the law. All claimant states and countries concerned with peace and stability in the South China Sea need to appeal to China. Countries should also ask China to give an exact definition of “waters under China’s jurisdiction.”
If China allows its Coast Guard ships to infringe on the waters, the sovereignty, sovereign rights and jurisdictions of ASEAN countries, then these countries could use legal measures to initiate a lawsuit in the Arbitral Tribunal under Annex VII UNCLOS to clearly assert that the Chinese Coast Guard has no right to violate international law.
The author is a visiting scholar at the Department of Political Sciences of the National Taiwan University.