Over the coming days, MAP will host short expert commentaries assessing the Maritime Police Law passed on January 22, 2021 by the National People’s Congress of the People’s Republic of China (PRC). The law, which went into effect on February 1, 2021, authorizes the China Coast Guard to use force against foreign vessels to assert the PRC’s claims in South China Sea.
February 11, 2021
Admiral (ret.) Takashi Saito, Chairman of the Maritime Security Study Group at the Nakasone Peace Research Institute, provides this statement:
On January 22, at the Standing Committee of the National People’s Congress, China passed and enacted the Maritime Police Law, which defines the duties and authority of the China Coast Guard and went into effect on February 1. However, some parts of this law are incompatible with international law and practice.
Most of the media coverage of the enactment of the Maritime Police Law has focused on Article 22, which states that “all necessary measures, including weapons,” can be taken against foreign organizations or individuals that infringe on China’s sovereignty or jurisdiction. This provision has raised concerns that the law could lead to armed conflict between China and Japan. In addition, there are suspicions that many of the law’s provisions are incompatible with international law and practice.
The Maritime Security Study Group of the Nakasone Peace Institute (NPI) believes that Article 21 of the Law is one such provision. Article 21 states the following:
Maritime police agencies have the right to take necessary warning and control measures to stop foreign military ships and government ships used for non-commercial purposes that violate Chinese laws and regulations in the waters under Chinese jurisdiction, and order them to leave immediately the relevant sea areas. For those who refuse to leave and cause serious harm or threats, the maritime police agency has the right to take measures such as forced eviction (provisional translation).
This provision deletes the definition of “waters under China’s jurisdiction” found in Article 74 (2) of the previously announced draft, making it ambiguous, as well as imposing restrictions on the navigation of warships and government ships as China’s unilateral authority in “waters under its jurisdiction.” This is contrary to the principle of sovereign immunity for warships and government ships and is clearly contrary to international law. The article imposes restrictions on the navigation of those ships outside territorial waters through domestic law and restricts the principle of freedom of navigation in international waters.
For these reasons, the Maritime Security Study Group believes that the enactment of the Maritime Police Act tramples on international maritime law and order and the principle of freedom of the seas that have been built up through historical efforts. China should not be allowed to legitimize the actions of its coast guard in the East and South China Seas. It should also not be allowed to make Chinese domination of the seas a foregone conclusion.
Admiral (ret.) Takashi Saito is Chairman of the Maritime Security Study Group at the Nakasone Peace Research Institute (NPI). He is the former chief of staff of the Joint Staff of the Japan Self-Defense Forces. This is the view of the Maritime Security Study Group and does not necessarily represent the view of the NPI.
February 16, 2021
Seokwoo Lee, a Professor at the Inha University Law School in Incheon, South Korea, provides this statement:
With China’s passage of the new Maritime Police Law, conflicts over sovereign rights and exercise of jurisdiction by the relevant coastal states could escalate. While the law seems to predominantly target the United States, Japan, and the coastal states of the South China Sea, the Yellow Sea adjacent to the Korean Peninsula and the waters surrounding Ieodo (also known as Socotra Rock) in the northern East China Sea will not be free from law enforcement by China. In the event that the law’s enactment raises tensions in regional waters, maritime activities around the provisional measures zone in the Yellow Sea will likely become a sensitive issue involving a degree of law enforcement by relevant states. If the manifestation of China’s law enforcement becomes conspicuous, the primary means of response from South Korea would likely be nonmilitary; however, quasi-military action is also possible.
In particular, if the demand for law enforcement related to China’s increased maritime power emerges, South Korea’s neighboring seas may suddenly turn into seas of conflict. The conflict could be over marine scientific research, military surveys, exploration of resources, law enforcement, or installation of facilities. The assessment of each type of conflict under international law can be divided into the activities allowed in overlapping jurisdiction (i.e., provisional measure zones) and the required responses as part of exercising unilateral sovereign rights.
China’s Maritime Police Law clearly will expand conflicts involving sensitive issues regarding the operation of maritime law enforcement and activities in Northeast Asia. Nonetheless, the enactment of the law by itself is not a violation of international law. Instead, it should be regarded as the application of a sovereign right that requires other countries to exercise restraint due to the provisional measure. This means that law enforcement by the China Coast Guard should carefully consider international judicial decisions, state practices, and the geopolitical climate of the international community. In the meantime, the Korea Coast Guard must continue following China’s state practices regarding maritime law enforcement. Meanwhile, violations of United Nations Convention on the Law of the Sea (UNCLOS) Articles 74 (3) and 83 (3), as well as other relevant international norms, should be raised when using law enforcement in undefined waters. Therefore, it is important to follow the implementation of norms on maritime law enforcement in the international community to interpret future laws by China.
While South Korea’s Coast Guard Act is in full operation, more needs to be done to establish standards for the use of weapons by the coast guard. This will be utilized as a basis for concrete law enforcement by field agents as well as a precondition for providing education on appropriate responses. In an environment where states struggle for hegemony and where conflict over maritime activities in regional waters is increasing, it is evident that China’s enactment of the Maritime Police Law will heighten international scrutiny.
Seokwoo Lee is a Professor at the Inha University Law School in Incheon, South Korea.
February 16, 2021
Ja Ian Chong, an Associate Professor with the Department of Political Science of the National University of Singapore, provides this statement:
Responses to the PRC’s new Maritime Police Law are largely muted, including from Singapore, which was previously an understandably vocal proponent of rule of law internationally given its small size and relatively limited capabilities. It is possible that assertive PRC behavior over maritime disputes, economic interests, and Beijing’s offer of Covid-19 vaccines have discouraged more visible reactions. A lesson Singapore may have learned from its friction with Beijing over the rule of law between 2012 and 2017—culminating in the detention of Singaporean armored vehicles in a Chinese port in late 2016—is that silence pays.
This quiescence could also have to do with timing. The law’s introduction, passage, and operationalization dovetailed with the coup in Myanmar, which captured headlines in Southeast Asia and around the world. Governments in the region and beyond are already struggling to cope with the Covid-19 pandemic, and they have precious spare capacity to focus on what looks on paper like a domestic legal change. Even the United States seems too engrossed with its substantial domestic health and political woes to pay sustained attention. This absence of reactions could have prompted Singapore to hold its peace.
Nonetheless, the new law may well end up further complicating regional differences over maritime claims in disputed areas and potentially prove escalatory. Efforts to enforce what is effectively domestic law in disputed waters essentially imply that those areas are under PRC jurisdiction, something that other claimants and interested parties will find difficult to accept. PRC law enforcement in disputed waters could push other claimants up against domestic nationalist sentiment, forcing them to escalate a dispute and invite an even more heavy-handed PRC response.
The Maritime Police Law also alters the baseline for ongoing discussions about a code of conduct between Beijing and the Association of Southeast Asian Nations (ASEAN). Since the code of conduct is supposed to establish mutually acceptable behaviors for actors in disputed areas of the South China Sea, other parties need to accept PRC exceptionalism, demand similar treatment, or ask the PRC to rescind the law. If none of these options are mutually acceptable, then Beijing bears responsibility for an impasse or even the failure of negotiations. Even if other actors, including Singapore, do not openly state their misgivings, this silent resentment may strain the PRC’s future ties with ASEAN and other actors.
Ja Ian Chong is an Associate Professor with the Department of Political Science of the National University of Singapore. He received his PhD from Princeton University and previously taught at the Hong Kong University of Science and Technology. All comments are his own.
February 16, 2021
Nguyen Hong Thao, an Associate Professor in the Law Diplomatic Academy of Vietnam and National University of Hanoi, provides this statement:
From February 1, 2021, onward, the China Coast Guard—the largest coast guard in the world—has the right to fire on foreign vessels infringing on waters under Chinese jurisdiction. Beijing emphasized that the move was part of “normal legislative activity at the National People’s Congress.” However, the new law has caused anxiety and concern in the international community. It sets a precedent for China to use national law to settle international disputes in contested waters in the East and South China Seas as defined under the United Nations Convention on the Law of the Sea (UNCLOS). In this way, it also violates Article 27 of the Vienna Convention on the Law of Treaties in 1969, which provides that a party “may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
First, the law legalizes illegal actions by the China Coast Guard: shooting, ramming, and sinking fishing boats from other countries that conduct normal activities in their own exclusive economic zones under UNCLOS. The annual fishing ban imposed by China since 1998 that is largely enforced by the coast guard will challenge the regional fishing community. Second, by allowing the China Coast Guard to demolish other countries’ structures “on islands under Chinese jurisdiction,” the law breaks the self-restraint principle agreed to in the Declaration on the Conduct of Parties in the South China Sea and changes the status quo in the Spratly Islands. Third, the law legalizes natural resource exploration and exploitation activities conducted by Chinese companies on the continental shelves of other countries. Fourth, the law allows the China Coast Guard to prevent any legal freedom of navigation and overflight operations, including by the United States and its allies, in the East and South China Seas. To open fire in disputed waters would violate the prohibition of the use of force or any form of threat in relations between nations, as stipulated in
Article 2 of the UN Charter. The law also aims to justify China’s rejection of the 2016 arbitration decision in its dispute with the Philippines.
More fundamentally, the new law could shake the international rules-based order. Under the law, the China Coast Guard is not a maritime law-enforcement agency but rather a military force under direct command of the Central Military Commission. Any use of force by state agencies in other countries’ waters that China claims as its own can be qualified as an act of war. Other countries would then respond based on the right of self-defense, leading to instability in the region. Ultimately, this will reduce trust among parties and cause the failure of the negotiations on a code of conduct in the South China Sea.
Nguyen Hong Thao is an Associate Professor in the Law Diplomatic Academy of Vietnam and National University of Hanoi.
February 16, 2021
Nong Hong, Executive Director of the Institute for China-America Studies, provides this statement:China’s Maritime Police Law, which entered into force on February 1, 2021, represents an integral step toward clarifying and standardizing the operations of the China Coast Guard, following a long process of promulgating relevant laws and regulations since its formation in 2013. The law for the first time explicitly specifies the circumstances under which the coast guard would be allowed to use weapons on foreign vessels. Strict regulations in the law stipulate what kinds of weapons may be used. While the Chinese and U.S. coast guards are the only two that possess vessels large enough to carry anti-ship missiles, currently only China Coast Guard vessels are equipped with water cannons and some self-defense weapons. The purpose of the use of force by the coast guard is to take measures against ships suspected of serious violations of laws and disobedience of orders. This interpretation follows the principle of minimum use of force and is not conceived to encourage the use of force in combat.
It is a common practice for coastal states to authorize maritime law enforcement personnel to use force on foreign vessels—for other examples from East Asia, see Japan’s Revised Coast Guard Law in 2001, South Korea’s relevant announcement in 2016, and Vietnam’s New Coast Guard Law in 2018. Similar practices by China invite skepticism due to the growing disparity in maritime capability between China and the coastal states with which it is embroiled in ongoing maritime disputes. To ease this anxiety, China should demonstrate greater political will to engage with regional maritime law-enforcement agencies to minimize the risk of incidents at sea. It should also take the initiative to institutionalize joint training and exercises with other claimant states’ coast guard forces. Finally, China should work to further bring its maritime law-enforcement operations in line with international practice—for example, by taking necessary measures to restrain unauthorized, impulsive behavior and the abuse of force by local personnel.
Nong Hong is Executive Director of the Institute for China-America Studies. Dr. Hong is also a Research Fellow at the National Institute for South China Sea Studies in China and at the China Institute of the University of Alberta in Canada.
February 19, 2021
Sumathy Permal, Head of the Centre for the Straits of Malacca with the Maritime Institute of Malaysia, provides this view:
On January 22, 2021, the National People’s Congress passed a new law that provides the China Coast Guard with “all necessary means” to stop or prevent threats from foreign vessels and specifies the circumstances under which different weapons—“handheld, shipborne, or airborne”—can be used. According to media reports, the law also allows the coast guard to destroy structures built by other claimants, implying that China will safeguard its national sovereignty, security, and maritime rights in disputed areas of the South China Sea.
Under normal circumstances, this could be a sign of generic progress that the China Coast Guard’s laws are coming more in line with the practices of other coast guards around the world. But this new law stipulates powers and duties in “jurisdictional waters” that include highly contested areas in the South China Sea. As such, it is seen as brinksmanship and signals a threat to the law enforcements of other countries operating in the same vicinity. By virtue of China’s “nine-dash line” claims, the law applies to the entire South China Sea, which challenges the assertions of other claimant states, including Brunei, Malaysia, the Philippines, Vietnam, and Taiwan.
Coast guards are not military forces. Instead, they are law-enforcement forces that primarily perform constabulary roles and are usually armed with machine guns or at most medium-caliber deck guns. Although the coast guards of some countries, such as the United States, Japan, and Malaysia, carry small arms aboard their vessels for law enforcement and self-defense, this has not been as controversial as the China Coast Guard’s practices, which might not follow international standards. The provision in the new law allowing the use of weapons against foreign ships in disputed waters near Chinese-claimed features concerns all claimant countries. This will impose new operational challenges for the activities of other vessels, including those of the Malaysian Maritime Enforcement Agency and the Royal Malaysian Navy, operating in the area and shows that China is increasing its presence and might in the South China Sea.
Sumathy Permal is Head of the Centre for the Straits of Malacca with the Maritime Institute of Malaysia.
March 4, 2021
Ting-Hui Lin, the Deputy Secretary General of the Taiwanese Society of International Law, provides the following statement:
China’s new Maritime Police Law, which entered into force on February 1, allows the China Coast Guard to use different kinds of weapons, including hand-held, shipborne, and airborne, against foreign vessels in disputed waters. For context, in 2013 the coast guard was affiliated with the State Ocean Administration and commanded by the Ministry of Public Security. But in 2018, it was transferred to the People’s Armed Police and became a branch of the military under the command of the Central Military Commission.
The Chinese government explained the law as normal legislative activity at the National People’s Congress after concerns were raised that it will undermine regional stability, peace, and security. Taiwan’s Mainland Affairs Council objected that the law will allow the coast guard to deter foreign ships entering maritime areas under disputed Chinese jurisdiction and is inconsistent with international law, including the United Nations Convention on the Law of the Sea (UNCLOS). Although UNCLOS Article 73 (1) states that a coastal state may take such measures, including boarding, inspection, arrest, and judicial proceedings, the new law authorizes Chinese public vessels and aircraft to use weapons in a perceived dangerous situation without warning and does not apply to this article. It also means that China will effectively have two navies to carry out its maritime aspirations.
In recent years, Taiwan’s outlying islands—Kinmen, the Matsu Islands, Pratas Island, and Taiping Island—have often been surrounded by Chinese sand dredgers or fishing boats, and the Taiwan Coast Guard has conducted patrols to repel these vessels. If the Central Military Commission were to order the China Coast Guard to help illegal Chinese vessels respond by using shipborne weapons, a gray-zone issue could easily escalate into armed conflict between Taiwan
and China. Similarly, military activities by the China Coast Guard in the East and South China Seas could lead Japan and other claimants to take countermeasures. Thus, China’s new Maritime Police Law seriously threatens East Asia’s maritime security and stability.
Ting-Hui Lin is the Deputy Secretary General of the Taiwanese Society of International Law. Dr. Lin is also an adjunct assistant professor in the Department of Maritime Police at the Central Police University in Taiwan.