China’s Coast Guard Law Challenges Rule-Based Order – The Diplomat

On January 22, 2021 China passed the China Coast Guard (CCG) Law, which contradicts international law. It empowers the CCG to exert increased authority to threaten China’s neighbors and attempt to change the status quo in the East and South China Seas. Countries that value freedom and democracy must protect regional stability and the rule of law by strengthening multilateral cooperation and countering China’s challenges.

China claims that the CCG Law is consistent with international law and customary practice. However, the law conflicts with the United Nations Convention on the Law of the Sea (UNCLOS) in several areas. First, Article 21 of the CCG Law stipulates that if a foreign warship or government vessel violates China’s domestic law in waters where China claims jurisdiction, the CCG will take enforcing measures, up to and including forced eviction and towing. Article 22 permits the CCG to use weapons against foreign organizations and individuals that infringe on China’s sovereign rights and jurisdiction at sea. However, UNCLOS Articles 32, 95, and 96 stipulate that warships and government ships are completely immune from the jurisdiction of any country other than the flag state. Therefore, if the CCG implements the actions defined in Articles 21 and 22 of the CCG Law, it would be in violation of international law. Taking illegal coercive measures against other country’s warships and government ships causes an increased risk of armed conflict.

Shuxian Luo of Johns Hopkins University argues that the passing of the CCG Law contributes to reassurance in the region by standardizing the previously unclear operational criteria of the CCG and that the law should be welcomed. On the contrary, however, such legislation is inconsistent with international law and should be understood as a threat to regional states and condemned.

Another problem is the ambiguous definition of what constitutes Chinese jurisdiction. In the draft CCG Law that was released in November 2020, Article 74 of Chapter 11 defined “waters under Chinese jurisdiction” as including internal waters, territorial seas, the contiguous zone, the exclusive economic zone (EEZ), the waters above China’s claimed continental shelf, and “other waters.” This last term most likely indicates the waters inside of the “nine-dash line,” a boundary that encompasses the majority of the South China Sea, within which China claims historical rights. It also likely includes the waters around the Senkaku Islands, which China has unilaterally declared to be its territorial waters through the 1992 Law of the People’s Republic of China on the Territorial Sea and Contiguous Zone. China’s claim of maritime control within the nine-dash line was definitively rejected by the Permanent Court of Arbitration in 2016. In response to international condemnation, China removed the term “waters under Chinese jurisdiction” from the official version of the new CCG Law. China may have decided that it is better to obscure its enduring intentions behind the vague language to avoid criticism from the global community.

China’s unchanging, if more subtle, assertions of maritime control threaten international law and order. The international community must unite to confront Chinese aggression. History shows it can be done: In 2014, Vietnam utilized state media, mass demonstrations, its navy, and its coast guard to resist illegal Chinese oil exploration in Hanoi’s EEZ. Vietnam’s efforts stopped the Chinese state-owned oil platform Hai Yang Shi You 981 from continuing its illegal activities by increasing the political cost to China. The Philippines took a different approach to countering China in their EEZ. In 2012, China seized control of Scarborough Shoal because the Philippines attempted to use solely its weak navy to confront Chinese poachers. The Philippines requested the United States to intervene to protect their sovereignty. When the United States declined to do so, the Philippines filed suit at the international court, at which point China rejected the ITLOS tribunal’s jurisdiction despite the body ultimately ruling that Beijing was violating international law. These examples illustrate that China will continue its aggressive actions only when it can achieve its objectives at low risk and low cost. Therefore, in order to effectively counter Chinese aggression, states must directly confront China to increase the associated risks and costs.

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In recent years, the CCG has significantly enhanced its operational capability. In March 2018, control of the CCG was transferred from the State Council to the Central Military Commission, making it the hierarchical equivalent of the People’s Liberation Army (PLA). Additionally, Article 83 of the CCG Law tasks the CCG with maritime defense operations, a mission that normally falls to a state’s navy. The CCG is also undergoing increasing militarization through the acquisition of new platforms. Several ships were transferred from the PLA Navy to the CCG, some of which were equipped with the same 76-millimeter cannon found on many warships. Though it purports to be a law enforcement agency, the CCG’s combat capability far surpasses that of most Asian navies, and it is regarded by many as the strongest coast guard in the world. Because of the CCG’s size and strength, other countries would be forced to send navy vessels to compete with the formidable CCG assets. This trend of militarization greatly increases the risk of escalation and the risk of armed conflict.

Most Asian countries lack the capability to confront China at sea. Without adequate naval forces, many Asian states are unable to implement the necessary cost-imposing measures to curb Chinese maritime aggression. Collective measures are necessary to protect these countries’ rights and to preserve regional stability. In its maritime strategy, Advantage at Sea, released in December, the United States emphasizes the necessity of close cooperation among allies and partners to respond to China’s maritime challenges. In recent years, Australia, France, Germany, India, Japan, and the Netherlands also released Indo-Pacific strategies. With the exception of the Netherlands, every one of these countries has deployed naval vessels to the South China Sea within the past two years.

Democratic nations have an asset that China does not – strong alliances and partnerships. The growing uncertainty in both the South China Sea and East China Sea requires the coordinated involvement of more democratic powers from outside of Asia. Establishing systematic multinational patrols by the navies and coast guards of like-minded democracies and their partners will prevent escalation and discourage Chinese attempts to change the status quo by force. If left unchecked, China could expand its challenges to international norms through additional coercive actions within other maritime regions, including the Indian and Arctic Oceans.