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China’s Coast Guard Law: Destabilizing or Reassuring?

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China’s Coast Guard Law: Destabilizing or Reassuring?

The new law represents an integral step toward clarifying and standardizing the operations of the China Coast Guard, but that hasn’t stopped regional unease.

China’s Coast Guard Law: Destabilizing or Reassuring?
Credit: Wikimedia Commons/ Tyg728

China passed a law on January 22, which will come into force on February 1, that for the first time explicitly specifies the conditions under which the Chinese coast guard would be allowed to use weapons on foreign vessels. While concerns about the law’s potential to raise the risk of maritime incidents and escalation have considerable merit, it is equally noteworthy that this law, considered in the broader context of China’s protracted process of institutionalizing its maritime law enforcement force, represents an integral step toward clarifying and standardizing the operations of the China Coast Guard (CCG).

China’s maritime law enforcement system had long suffered from the problems of institutional balkanization and lacking a solid legal foundation. After China merged four of its five major maritime law enforcement agencies – the China Marine Surveillance (CMS), Maritime Police, Fishery Law Enforcement (FLE), and Anti-Smuggling Police – into a unified coast guard in 2013, the promulgation of relevant laws and regulations were slow to come about.

The CCG suffered from the lack of a solid legal foundation to clearly define its enforcement authority, a flaw that some Chinese law experts and maritime law enforcement officers warned would leave critical ambiguity. Following the 2013 merge, the CCG had to derive its legal foundation from the old legal bases designed for the CMS, Maritime Police, FLE, and Anti-Smuggling Police respectively, including the “Law of the People’s Republic of China on the Administration of Sea Areas,” the “Fisheries Law of the People’s Republic of China,” and the “Public Security Administration Punishment Law of the People’s Republic of China.”

This ambiguous legal foundation in turn resulted in the absence of a standardized procedure to guide the coast guard’s use of force. Under what circumstances to use force, what types of force, and when to escalate the level of force are all critical legal questions that were left unaddressed following the consolidation. According to an article published in the professional journal of China Maritime Police Academy in 2017, the primary law that had been used to standardize the use of force is the “Regulations of the People’s Republic of China on Use of Police Implements and Arms by the People’s Police,” which contained only generic provisions on the procedure of using weapons and had not been updated since its enactment in 1996. The “Regulations on Use of Weapons by the Border Control Forces” and its supplemental provisions, which used to provide a procedure of reviewing and approving the use of force, ceased to be in effect in 2014.

These legal issues remained unresolved after China’s decision in 2018 to transfer the CCG from the civilian control of the State Oceanic Administration to the People’s Armed Police, which in effect put the CCG under the command of the Central Military Commission.

China’s new coast guard law is clearly intended to address these legal issues by laying out a guideline for CCG personnel to gradually escalate the level of force employed. Clause 46 outlines four conditions for using “police implements” (jingxie, such as high-pressure water cannons, handcuffs, tear gas, etc., according to China’s definition for this term): 1) when forcing the other vessel to stop during the course of boarding, inspection, interception, and pursuit; 2) when expelling or towing away the vessel by force; 3) when encountering obstruction or harm in the course of enforcing the law; 4) when handling other situations that need to stop crimes on the scene.

Clause 47 stipulates two conditions for using hand-held weapons: 1) when evidence shows the vessel carries criminal suspects or illegally carries weapons, ammunitions, materials related to state secrets, narcotics, etc., and refuses to comply with orders to stop; 2) when foreign vessels enter sea areas under China’s jurisdiction to conduct illegal production operations, refuse to comply with orders to stop, or resist boarding or inspection by other means, and other measures have failed to stop these illegal activities.

Clause 48 specifies three scenarios for using ship- and air-borne weapons in addition to hand-held weapons: 1) when conducting counterterrorism operations at sea; 2) when handling serious violent incidents at sea; 3) when law enforcement vessels or aircraft are attacked by weapons or other dangerous means.

Clause 49 states that CCG personnel may use weapons pursuant to law should there be no time to issue a warning or if a warning may provoke more dangerous outcomes. Clause 50 underscores that CCG personnel should reasonably assess the necessary level of force being used based on the nature, extent, and urgency of the danger posed by the illegal activity and criminals in order to avoid or reduce unwanted casualties or property losses.

Authorizing maritime law enforcement personnel to use force on foreign vessels is a common practice adopted by coast guards in the region, and China’s coast guard law does not represent a deviation or outlier in this regard. For example, Japan revised its Coast Guard Law in 2001, authorizing its coast guard personnel to use weapons against foreign vessels within Japanese waters in situations deemed as reasonable and necessary. South Korea authorized its coast guard officers in 2016 to use firearms including handguns and onboard cannons against Chinese fishing vessels operating illegally in Korean waters should the situation be deemed threatening. Likewise, Vietnam’s new coast guard law passed in 2018 grants its maritime law enforcement personnel greater latitude to open fire at sea.

That being said, given the huge and still growing disparity in maritime capabilities between China and other claimants, there is much that China can and should do to assuage regional unease over its new coast guard law and to control the risk of miscalculation and escalation.

Externally, China can demonstrate a greater political will to engage other regional maritime law enforcement agencies to minimize the risk of incidents at sea. It is an encouraging sign that Clause 64 of China’s coast guard law specifies managing and controlling maritime crises, among others, as a primary international cooperation task for the CCG. While China joined 20 countries in the Pacific region in 2014 to agree upon safety and communication procedures as prescribed in the Code for Unplanned Encounters at Sea (CUES) to regulate encounters between naval ships and aircraft at sea, the rules of the road governing the operations of and encounters between maritime law enforcement forces in the area are still wanting. A pragmatic step that China can take at the current stage is to support extending rules in CUES to regulate interactions between coast guard forces. Such a move is not unprecedented. The United States and the Soviet Union concluded the 1972 Incident at Sea Agreement (INCSEA), the language and technical specifics of which CUES has drawn heavily upon, to constrain their military vessels from dangerous maneuvers. In 1973, the two superpowers agreed to extend the provisions in the INCSEA to cover non-military ships.

China should also consider institutionalizing joint training and exercises with other claimants’ coast guard forces. A focus of such joint endeavors can be on how to appropriately handle contingencies at sea related to fishing and hydrocarbon resource exploration activities in the contested waters, since excessive use of force by maritime law enforcement personnel against civilian marine workers, as illustrated in China’s sinking of a Vietnamese fishing boat in April 2020 and the fatal shooting of a Vietnamese fisherman by the Malaysian Maritime Enforcement Agency in August, has been an issue of growing concerns. Regardless of the outcomes of the sovereignty and jurisdiction disputes, respect for human life should be upheld as the bottom line.

Internally, China should establish transparent processes to curb disproportionate use or abuse of force by local personnel and further bring its maritime law enforcement operations in line with international practice. Unauthorized, impulsive behavior resulting from the “excessive zeal or incompetence” of local commanders, according to Sean Lynn-Jones, an international security scholar at Harvard University’s Belfer Center, bears the primary responsibility for the occurrence of incidents at sea. There are several internal mechanisms that China can consider installing to discourage such acts: 1) documenting and reporting incidents involving the use of force, 2) investigating and evaluating the appropriateness of using force, 3) making appropriate revisions to the procedures, and 4) taking necessary disciplinary actions on personnel found inappropriately using force.

China’s intention to clarify and standardize operations of its coast guard should be welcomed. But Beijing needs to understand why its coast guard law has the aggravated concerns in the region and reassure its neighbors by expanding engagement and transparency.

Shuxian Luo is a Ph.D. Candidate in International Relations at the School of Advanced International Studies (SAIS), Johns Hopkins University. Her research examines China’s crisis behavior and decision-making processes, maritime security in the Indo-Pacific, and US relations with Asia.