Assessing the Real Risks of China’s New Coast Guard Law

Since its release in October in draft form, the new Chinese coast guard law has been the subject of dozens of the news and analyzes. Maritime law enforcement legislation seldom attracts such international attention, but in this case it is warranted. For 15 years, the Chinese Coast Guard ruled the country expansion towards the sea in areas long claimed but rarely (if ever) visited. International observers are right to ask, what does the new law portend for Chinese behavior at sea?

Many have focused on the use of force provisions of the law. In the past, the Chinese Coast Guard used a wide range of coercive tactics to achieve Beijing’s strategic and operational objectives. Last April, for example, a 3,500-ton Chinese coastguard vessel crashed into and sank a Vietnamese fishing vessel operating in waters also claimed by Hanoi. suggested Vietnamese wooden hull boat ramming). However, to date he has avoided using armed force against foreigners.

The new law signals that this could change. Article 47 allows armed Chinese Coast Guard personnel to forcibly board non-compliant foreign vessels engaged “illegally” in economic activities in waters claimed by China. Section 48 authorizes the use of on-board weapons (i.e. deck guns) in cases where the Coast Guard is attacked by weapons and “other dangerous methods”, which may mean anything. Even more ambiguous, Article 22 allows the Coast Guard to use “all necessary means, including the use of force” to arrest foreigners who violate Chinese “sovereignty, sovereign rights and jurisdictional rights”.

While worrisome, the use of force provisions are not the most worrisome elements of the new law. Rather, it is about the ambiguous geographic scope of law enforcement: China’s “jurisdictional waters” (管辖 海域). The bill only vaguely defined the term (section 74). In the final version, adopted on January 22, this content was removed, leaving no definition.

However, a close reading of authoritative Chinese sources reveals that Beijing claims competence over 3 million square kilometers of maritime space, often referred to as “China’s”blue national territory‘. This includes the Bohai Gulf; much of the Yellow Sea; the East China Sea as far east as the Okinawa Trench, including the waters around the disputed Senkaku / Diaoyu Islands; and all waters included in the “nine-dash line” of the South China Sea. By Beijing’s own calculations, ‘more than half‘of this space is contested by other countries.

If the Chinese Coast Guard followed the letter of the new law, what would we see? In the South China Sea, any foreign fishing, survey or research vessel operating anywhere within the nine dash line would be subject to boarding and inspection (Article 18). Refusal to comply would mean forced boarding by armed personnel ready to force them to do so (article 47). The Chinese Coast Guard would send units to dismantle structures on every land element occupied by the Vietnamese, the Philippines and the Malaysians in the Spratly Archipelago (Article 20). In the East China Sea, the Coast Guard sailed to the Senkaku / Diaoyu Islands and “kicked out” any Japanese ships they encountered (Article 17). In the Yellow Sea, East China Sea, and South China Sea, coast guards would track down and expel US Navy ocean surveillance vessels like USNS Impeccable and hydrographic vessels like USNS Bowditch for carrying out “illegal” activities in China’s exclusive economic zone (Article 21).

Fortunately, just because Beijing has a law in effect doesn’t mean that it will actually enforce its provisions. This is certainly true in the maritime field. For example, China’s National Fisheries Law, the latest updated in 2013, authorizes Chinese maritime law enforcement to punish and expel (Article 46) foreign fishing vessels operating illegally in China’s jurisdictional waters. Yet, there are still large sections of China’s “blue national territory” where they continue to operate without concern.

In recent years, China has passed several new laws and regulations that seemed to portend new coercive behavior that never happened. For example, in 2012 and 2013, Hainan Province enacted two new maritime laws, one on fisheries management and one on public security. Nether apparently made matters worse for foreign sailors, despite concerns they would like.

In August 2016, the Chinese Supreme Court rendered judicial interpretations authorizing the Chinese Coast Guard to charge foreigners with criminal offenses if they are caught “poaching” in Chinese jurisdictional waters. Since then, the Coast Guard has not enforced this provision, despite numerous opportunities to do so. Thus, new laws did not necessarily mean new coercive behavior. It seems unlikely that this one either.

Why? Because applying these laws to foreign seafarers is above all a political decision. It’s a matter of foreign policy, not domestic policy. And to apply them according to the book would be a terrible foreign policy. Beijing would further alienate its neighbors, bringing them closer to its rivals, the United States and Japan. It would be much more difficult for Malaysia, Indonesia and Vietnam to remain neutral in the current period of great power competition. It would risk erasing all the hard work that has been done to divert Manila from its alliance with Washington. And that would mean war with Japan and the United States.

This does not mean that regional states should simply ignore the coast guard law. Far from there. When the draft was released in October, an official ‘explanation‘listed four reasons why this was urgently needed. The former cited demands associated with building China into a “great maritime power” and “safeguarding maritime rights and interests” – the code words for “doing a better job defending China’s maritime claims. “.

Clearly, Beijing expects the law to benefit its cause in one way or another. In addition, Chinese policymakers have inserted the most coercive provisions in the new law because they clearly imagined situations when applying them. would have have political meaning. So even if the chances of another major provocation are slim today, regional states need to take substantial steps to prepare for this possibility in the future.

Smart leaders will do more than that. In June 2012, Vietnam adopted a new maritime law which defined the geographic extent of its own maritime borders, including the territories occupied by China. In retaliation, China established Sansha city, opening the door to a major expansion of China’s administration from the disputed space in the South China Sea. If China can take foreign law seriously, so can others.

Besides being vigilant and astute, what could regional states do? At the very least, they should tell Beijing that they will never accept law enforcement against their citizens in disputed waters and warn of dire consequences if China does so anyway. In the age of great power competition, even small states have leverage. They should also demand that China provide a precise definition of its “jurisdictional waters”.

By allowing its coast guard to use lethal force to defend its maritime claims, Beijing has crossed a line. Foreign diplomats should tell their Chinese counterparts that any ambiguity is simply no longer acceptable.