China’s New Coast Guard Law and Implications for Maritime Security in the East and South China Seas
China's new Coast Guard Law has several inconsistencies with UNCLOS.
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Introduction
The Standing Committee of China’s National People’s Congress passed the China Coast Guard (CCG) Law (海警法) on Jan. 22, and the law is scheduled to take effect on Feb. 1. The new law hasn’t attracted tons of attention, but it violates the United Nations Convention on the Law of the Sea (UNCLOS).
The change builds on other shifts that have militarized China’s maritime law enforcement apparatus. In 2013, China created the CCG Bureau (中国海警局), which unites the previously separate maritime law enforcement agencies known as the Five Dragons: the China Marine Surveillance, the CCG, the China Maritime Patrol, China Fisheries Law Enforcement Command (中国渔政) and the General Administration of Customs. The CCG was reorganized further into the Chinese People’s Armed Police Force Coast Guard Corps (中国人民武装警察部队海警总队) in 2018 and came under the command of the People’s Armed Police Force. This change led to some practical shifts. The CCG has been transformed into a military-like organization under the centralized command of the Chinese Communist Party Central Committee and the Central Military Commission (中央军事委员会), at least from the viewpoint of a command and control structure. This operating structure mirrors that of the People’s Liberation Army (PLA).
Putting military organizations in charge of maritime law enforcement is not unique to China and is not a problem in itself. In the United Kingdom, for example, the navy performs coast guard duties. And in some countries—as is the case with Italy’s Carabinieri and France’s Maritime Gendarmerie—the military takes on law enforcement and coast guard duties. Others, like the U.S., have coast guard units that are responsible for maritime law enforcement but are considered an additional armed force, separate from the naval branch. By contrast, Japan stipulates in Article 25 of the Japan Coast Guard Law that “[n]othing in this Act shall be construed as authorizing the Japan Coast Guard (hereinafter JCG) or its personnel to be organized, trained, or to perform military functions'' and specifies that it is a civilian coast guard agency.
In the case of the CCG, it is a maritime law enforcement organization that does not deny that it is a military force even under international law.
Wang Wenbin, deputy press secretary of China’s Ministry of Foreign Affairs, said at a press conference on Nov. 12, 2020, that the “promulgation” of the CCG Law enacted this time “is a normal legislative activity of the [National People’s Congress], and 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.” In other words, China argues that all of the articles of the CCG Law are completely legitimate and lawful as a matter of international law, but a closer look at the text of the law reveals that it differs from the provisions of UNCLOS, to which China is a party, as well as from state practices.
Vague Wording of China’s Jurisdictional Waters
Article 1 of the CCG Law stipulates its purpose: “This Act is enacted to establish norms and guarantees for the CCG organization and its employees to fulfill their responsibilities in accordance with the law, to protect the sovereignty of the State, and to safeguard the legitimate interests of the public, corporations, and other organizations.” Article 2 says the People’s Armed Police Force’s Coast Guard, that is, the coast guard organization, shall uniformly perform maritime rights enforcement duties. With regard to the waters in which the CCG operates, Article 3 stipulates that “the CCG Organization shall conduct law enforcement operations in the waters under the jurisdiction of China and in the airspace above the waters under the jurisdiction of China, and apply this Law.” Under the UNCLOS, the waters under the jurisdiction of a state are the internal waters, territorial sea, contiguous zone, exclusive economic zone and the waters of the continental shelf (including the extended continental shelf). But China’s position on jurisdictional waters in the South China Sea has long clashed with the UNCLOS text. China claims the nine-dash-line in the South China Sea. The roots of the nine-dash-line date back to 1 December 1947, when the Government of the Republic of China (R.O.C.) promulgated two documents created by the Ministry of the Interior: The Cross Reference Table of the New and Old Names of the South China Sea Islands and The Location Map of the South China Sea Islands. These documents depicted an eleven-part, U-shaped line that encompassed the Spratly Islands and the Paracel Islands. This line was redrawn when territorial rights to the Bach Long Vi Island in the Gulf of Tonkin were transferred from the P.R.C. to Vietnam in 1953, changing the eleven-dash-line to a nine-dash-line. This is the line that has since come to be known as the “nine-dash-line”. In 2009, China submitted a note verbal to the United Nations. In the note verbal, a map was attached and a vast area of the South China Sea was surrounded by nine-dash-line and China claimed that “China has indisputable sovereignty” over the area inside of the dash lines belonging to China without explaining the reasons for the change. Article 14 of China’s 1998 Exclusive Economic Zone and Continental Shelf Act stipulates that “the provisions of this law shall not affect the historical rights of China'' and recognizes the existence of waters other than the exclusive economic zone and continental shelf over which China exercises jurisdiction. The same law also adds historical waters other than those recognized by the UNCLOS as China’s jurisdictional waters by using the expression “other jurisdictional waters.”
China has faced pushback in international forums over its land claims. The 2016 South China Sea Arbitration Award denied China’s position, concluding that “China’s claim to historic rights to the living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention to the extent that it exceeds the limits of China’s maritime zones as provided for by the Convention.” The award reasoned that “upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention.” Thus, the South China Sea Arbitration Tribunal concluded that the Convention superseded any historic rights or other sovereign rights or jurisdiction in the excess of the limits imposed by the Convention. With this ruling, the South China Sea Arbitration rejected China’s claims of historic rights within the nine-dash-line. In sum, China’s claim of its sovereignty in the South China Sea is groundless as a matter of international law. However, China has refused to implement this ruling, calling it illegal and invalid.
The new CCG Law again uses the phrase “waters under the jurisdiction of China” and clearly states that the CCG will conduct law enforcement operations to protect maritime rights and interests in waters over which it originally could not exercise jurisdiction under the UNCLOS (waters within the nine-dash line in the South China Sea). This intention was clear in Article 74(2) of the draft of the CCG Law, announced on 4th November, 2020 included “other waters under the jurisdiction of the People's Republic of China” in addition to internal waters, territorial waters, contiguous zone, exclusive economic zones and continental shelf defined under the UNCLOS. However, the definition was deleted when the new CCG law was adopted and China’s intention behind “waters under the jurisdiction of China” was hidden.
The impact of China’s refusal to budge from this position may be dramatic. Conflicts with Vietnam and the Philippines in the South China Sea seem inevitable. In addition, based on the 1992 Law on the Territorial Sea and the Contiguous Zone, China has unlawfully exercised its legislative jurisdiction and established territorial waters around the Senkaku Islands, which are Japanese territory. China’s new domestic law adds to the set of tools that China can use to claim the waters as “waters under the jurisdiction of China” and exercise enforcement jurisdiction over Japan.
Status of the China Coast Guard and Defense Operations
A more important component of the new CCG Law is Article 83, which stipulates that “the CCG Organization shall carry out defense operations and other missions in accordance with the National Defense Law, the Armed Police Law, and other relevant laws, military regulations, and orders of the Central Military Commission.” In other words, it clearly states that the CCG is an organization with the dual functions of a navy conducting defense operations in waters under its jurisdiction (military activities) and a maritime law enforcement agency (law enforcement activities). The law transformed the CCG into an organization with the mission of national defense.
Such cooperation between the CCG Bureau and the PLA Navy has already begun, and in July 2020, a joint exercise was held between the CCG Bureau and the PLA Navy on Woody Island (Yongxing Island) in the Paracel Islands. In this exercise, the PLA Navy’s Type 071 landing ship and other vessels participated. The CCG Bureau’s troops, supported by the navy, landed on the island and conducted a drill to subdue the resisting citizens. Bryan Clark, a senior fellow and naval expert at the Washington-based Hudson Institute, said that the exercise was not about simulating an attack on another military force but about using the military in a police action to suppress potential civilian unrest.
A Preparatory Step to Prevent Japan From Strengthening Its Effective Control Over the Senkakus
Article 12 of the CCG Law stipulates the responsibilities of the CCG Organization as follows:
(i) In the waters under our jurisdiction, patrol, exercise vigilance, take duty on key islands, manage and protect maritime boundaries, and prevent, restrain, and eliminate acts that threaten the sovereignty, security, and maritime interests of the nation. (ii) To protect the safety of key maritime targets and critical activities, and to take necessary measures to protect the safety of key islands, as well as artificial islands, facilities and mechanisms in the exclusive economic zone and continental shelf.
Article 20 authorizes the CCG Organization to order the suspension of illegal activities, including installing facilities and buildings by foreign organizations and individuals, or to order the improvement of the situation within a stipulated time limit. In the case of refusal to stop illegal activities or refusal to make improvements within the time limit, the law authorizes the CCG Organization, when necessary, to pursue various punitive measures: to remove the facilities and buildings in accordance with the law in a case where foreign organizations or individuals construct buildings or structures, or to install various types of fixed or floating devices in the waters and islands under the jurisdiction of China without the permission of the competent authorities of China.
With the increasing movement of Chinese public vessels around the Senkaku Islands, if Japan develops a port, builds a facility where civil servants are stationed, or otherwise works to strengthen its effective control of the islands, Article 20 of the domestic law makes it more likely that the CCG will remove them.
Compulsory Measures Against Foreign Warships
Article 21 of the CCG Law states that in cases where foreign military vessels or government vessels operating for noncommercial purposes violate China’s domestic laws in waters under China’s jurisdiction, “the CCG shall have the right to take necessary security and control measures to restrain foreign military vessels and foreign vessels used for non-commercial purposes in waters under China’s jurisdiction from violating the laws or regulations of China. For those who refuse to leave and cause serious harm or threat, the Maritime Security Organization has the right to take measures such as deportation and forced towing.” In Japan’s case, potentially vulnerable vessels include patrol vessels of the Japan Coast Guard.
This opens the door to potential incompatibilities with the UNCLOS. The convention provides in Article 32 that, with respect to the territorial sea, “with such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.” And with regard to the protection and preservation of the marine environment, Article 236 of the UNCLOS states that “[t]he provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service.” The convention grants immunity to military vessels, military support vessels and government ships from the enforcement jurisdiction of coastal states. If the CCG were to take measures such as forcibly towing warships or government vessels, it would be a clear violation of the UNCLOS.
Furthermore, Article 22 of the CCG Law states that “when the sovereignty, sovereign rights and jurisdiction of a State are confronted with an imminent danger of unlawful infringement or unlawful violation by foreign organizations and individuals at sea, the CCG Organization shall, in accordance with this Law and other laws or regulations, take all necessary measures, including the use of weapons.” In addition, Article 47 stipulates that “officials of the CCG Organization may use weapons in accordance with the law, and may directly use weapons if there is no time for warning or if there is a risk of serious harm after giving warning.”
Until now, the use of weapons by the CCG has been conducted in accordance with a series of other Chinese domestic laws: Articles 10 and 11 of the People’s Police Law; Articles 2, 4 and 9-11 of the People’s Police Regulations on Security Equipment and Use of Weapons; and Article 9 of the Regulations on Maritime Law Enforcement Activities of Public Security Organs. All of them state, “Law enforcement personnel of marine patrol vessels may fire shots only when necessary. When firing shots, a verbal warning or a warning to fire must generally be issued first. They shall not fire unnecessarily and shall not shoot at the vessel under investigation unnecessarily. The use of weapons should be limited to subduing the other party.”
In comparison, Article 22 of the CCG Law expands the scope of the use of weapons to include foreign organizations. Article 47 of the same law can be read as a provision that permits the more aggressive use of weapons. Chinese government vessels, which call the waters around the Senkaku Islands their own territorial waters under their sovereignty and track Japanese fishing vessels, have not been excluded from the possibility of using weapons, although Article 22 also has a requirement for “unlawful infringement of individuals” and “in case of imminent danger.” In other words, the CCG has authorization to use weapons without warning against both government vessels and civilian vessels as a matter of its domestic law.
These changes present challenges for other countries in the Pacific. Japan, in particular, needs to be prepared to respond both positionally and legally to these new developments by China. In the case of private vessels such as fishing boats, the International Tribunal for the Law of the Sea, in its ruling on the Saiga case in 1999, stated the following three requirements: (a) The use of weapons must be avoided as much as possible, (b) the use of weapons must not exceed the necessary limits and must be reasonable, and (c) the use of weapons must not endanger human life. If a Chinese vessel were to do things to a Japanese fishing vessel that go beyond those parameters, it would be a violation of international law.
Establishment of Temporary Maritime Alert Zones in Jurisdictional Waters
What is especially noteworthy about this CCG Act is the intent of the provision on establishing “temporary maritime alert zones.” Article 25 of the CCG Law states:
A CCG organization at the level of a provincial CCG bureau or above may set up a maritime temporary alert zone in the waters under the jurisdiction of China and restrict or prohibit the passage or stopping of ships and personnel if any of the following circumstances exist
(1) When it is necessary to carry out maritime safety and security missions
(2) When it is necessary to control illegal criminal activities at sea
(3) When it is necessary to deal with maritime collision incidents
(4) When it is necessary to protect marine resources and the ecological environment
(5) When it is otherwise necessary to set up an extra maritime alert zone.
The real problem will come if and when China tries to establish a maritime temporary alert zone with the justification of carrying out maritime security and security missions, as referenced in Article 25 of the CCG law. UNCLOS provides in Article 25, paragraph 3, that “the coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.”
If the establishment of a maritime temporary alert zone in China’s territorial waters meets this requirement, especially the requirement that the navigation of foreign vessels be carried out “temporarily” without “legal or de facto discrimination,” no problem will arise. However, if a regulation that “discriminates de facto” is imposed on a foreign country for a long period of time, it would violate the UNCLOS.
The case of contiguous waters requires particular attention. Article 33(1)(a) of the UNCLOS allows coastal states to impose regulations on contiguous zones in order to “prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.” However, Article 13 of China’s Law on the Territorial Sea and the Contiguous Zone extends its jurisdiction over “safety” to its contiguous zones, stating that “China has the authority to exercise powers within its contiguous zone for the purpose of preventing or punishing infringement of its security, customs, fiscal sanitary laws and regulations or entry-exit control within its land territories, internal waters or territorial sea.” When read in conjunction with this law, the CCG law may enable China to establish a temporary maritime zone in the contiguous zone, which would violate the UNCLOS.
In the case of the establishment of a temporary maritime alert zone in the exclusive economic zone or the high seas for the purpose of designating the expected landing zone for military exercises or live missile tests, its legitimacy will be judged based on whether the moves in question meet the requirement of “due regard” to other states. Article 56(2) of the UNCLOS states that “in exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.” A separate UNCLOS provision, Article 87(2), discusses the freedom of the high seas: “[T]hese freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.” If China claims that the waters within the nine-dash line are “waters under the jurisdiction of China'' and unilaterally establishes a maritime temporary alert zone in waters that originally belong to the exclusive economic zone of other states, the possibility of violating the UNCLOS may arise. The new law adds to China’s legal arsenal to make frivolous nine-dash line claims. For example, if a temporary maritime alert zone is established by China in the waters surrounding a coastal state’s fishing grounds, facilities, or structures for resource development, or in the waters adjacent to a major international shipping route, it would not be giving “due regard” to other states as required by the UNCLOS. If the zone is established around Taiwan, as Capt. Toshinari Matsuo discusses, this may have a serious impact on Taiwan.
An Illustration of China's Nine-Dash Line (Source: https://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf)
The Legal Status of China’s Government Vessels
The vessels of the Chinese CCG repeatedly trespass into the territorial waters around the Senkaku Islands. They have a white hull with blue markings and are categorized as government official vessels that fall under the category of “other government ship operated for non-commercial purposes,” as defined in Article 31 of the UNCLOS. The question is whether the patrol ships of the CCG, which have been given a new function of defense, have changed their legal status as a result of the CCG Law from that of government ships to that of warships.
Article 29 of the UNCLOS defines a warship as “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate 35 service list or its equivalent, and manned by a crew which is under regular armed forces discipline.”
The police are usually a civilian law enforcement agency, so police units are treated as civilian institutions and receive general protection from attack during armed conflict. The patrol vessels of the JCG, for example, are civilian maritime law enforcement agencies, as outlined by the provisions of Article 25 of the JCG Law. The CCG confronting, though not yet attacking, the JCG vessels in the Senkakus are not merely maritime law enforcement agencies under the domestic law of China’s CCG Law but also are vessels carrying out military defense mission operations.
Since the principle of police proportionality applies to the use of weapons by maritime law enforcement agencies, the JCG is only equipped with machine guns ranging from 12.7 mm to 40 mm in caliber. However, the CCG has patrol boats equipped with destroyer-class 76 mm guns. If Chinese public vessels are equipped with large-caliber guns or missiles whose use cannot normally be explained by the principle of police proportionality—and if they have the purpose of carrying out organized hostilities—the CCG ships may be treated as military forces under the law of armed conflict if the substantive criteria are applied. Japan needs to keep a close eye on whether there will be any changes in the equipment of the CCG vessels following the passage of the CCG Law.
So, will CCG vessels have the legal status of warships? This should be decided based on whether or not these vessels are also registered as warships of the PLA Navy, which is unclear at this point.
Answers about the legal status of CCG vessels may come from looking to another international law text, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. The San Remo Manual adopts the UNCLOS definition of “warships” at Rule 13(g). The manual defines “auxiliary vessels” at Rule 13(h) as “vessels either owned by or under exclusive control of the armed forces of a State and used for the time being on government non-commercial service in support of the armed forces.” The definition of “auxiliary vessels” seems much more applicable to the CCG vessels than does the definition of “warships.” Thus, if the vessel in question were not registered as a Chinese warship, the CCG vessel would be considered an auxiliary vessel. Under Article 236 of the UNCLOS, both military vessels and auxiliary vessels enjoy the same sovereign immunity as government vessels, and regardless of which characterization is adopted by the flag state, the vessel is entitled to sovereign immunity in peacetime.
In armed conflict, naval warfare regulations traditionally use categorical target selection criteria. Legitimate targets at sea are warships, military auxiliaries and some merchant ships meeting certain conditions, and these vessels are therefore subject to attacks without warning. In addition, Paragraph 13.21 of the San Remo Manual states that “only warships can exercise belligerent rights,” and if a CCG vessel, which is an auxiliary vessel not registered as a warship, were to exercise belligerent rights, it would be a violation of international law.
Implications for the Japan Coast Guard
If a vessel other than a warship, including auxiliary vessels and government vessels, is to be converted to a warship, Article 6 of the Hague Convention No. 7 of 1907 (Convention on the Conversion of Merchant Ships to Warships) requires the country in question to, “as soon as possible, announce such conversion in the list of war-ships,”and this seems to become customary international law.
JCG patrol vessels may confront CCG vessels assigned defense missions under the CCG Law. However, there are significant differences between CCG vessels and JCG vessels that should be noted in armed conflict.
According to Article 80, Paragraph 1 of the Self-Defense Force Law, in the event of a defense operation based on Article 76, Paragraph 1 or a security operation based on Article 78, Paragraph 1, the prime minister “may bring all or part of the JCG under the control of the Minister of Defense if it is deemed specially necessary,” and Paragraph 2 of the same article further stipulates that in this case, “the Minister of Defense shall be given command of the JCG as specified by a Cabinet Order.” Even if they are under the command of the minister of defense, as long as they conduct only CCG duties as before, they can be considered nonmilitary. To ensure nonmilitary status, Article 103 of the Self-Defense Force Law Enforcement Order states that “the Minister of Defense’s command over all or part of the JCG pursuant to the provision of Article 80, paragraph 2 of the [Self-Defense Force] Law shall be given to the Commandant of the Japan Coast Guard.” Thus, in contrast to CCG vessels, the status of JCG patrol vessels will never be changed from civilian ships, even in armed conflict. Therefore, the procedure of Article 6 of the Hague Convention No. 7 will not be applied.
Conclusion
The final-day communiqué of the 5th Plenary Session of the 19th Central Committee of the Communist Party of China in 2017 states, “We will carry out Xi Jinping’s strong military ideology and the military strategic policy of the new era, and secure the goal of striving for the 100th anniversary of the founding of the military in 2027.” It will be necessary to keep a close eye on whether the goals referred to here are policy goals related not only to strengthening and modernizing the People’s Liberation Army but also to broader Chinese Communist Party goals for Taiwan and the Senkakus. China’s adversaries should prepare for the fact that, by 2027, China will see itself as having mustered sufficient force to counter the JCG in the Senkakus and the Self-Defense Force.
In the South China Sea, there have been instances of China mobilizing fishing boats and other vessels to conduct demonstrations in territorial disputes and maritime boundary disputes. A lot of attention is currently being paid to the legal status of such fishing boats when they are armed and deployed in armed conflict. One example of China’s use of fishing fleets, known as maritime militias, in armed conflict is the 1974 incident between China and South Vietnam over the Paracel Islands. Such incidents are likely to occur in the Senkaku Islands as well.
A more realistic scenario, however, is that in peacetime, maritime militias will secretly land on the uninhabited Senkaku Islands, fly the Chinese flag and refuse to comply with the JCG’s request to leave. It seems that the time is approaching that Japan should seriously consider how the JCG and the Self-Defense Force respond in that case. This question is relevant for the United States, too. President Biden reaffirmed during a telephone conversation with Prime Minister Yoshihide Suga that Article 5 of the Japan-U.S. Security Treaty, which stipulates joint defense obligations, applies to the Senkaku Islands. However, in response to China’s hypothetical occupation of the uninhabited islands, which in the previous scenario would not result in a single death, the United States would be faced with a difficult choice—the so-called “Senkaku Paradox”—as to what extent it will participate in the risky operation to retake the islands without escalating into a Sino-American war. With such a situation in mind, Japan should strengthen its own response capabilities to prepare for potential Chinese aggression.
