Report Contents

March 3, 2021

Asia

ASIA: China’s new Coast Guard Law is not an escalation of maritime disputes

BY Gabriel Wildau, Bob Herrera-Lim, Tobias Harris

Share on twitter
Share on whatsapp
Share on facebook
Share on linkedin
Share on email
Share on reddit

Listen to our reports with a personalized podcasts through your Amazon Alexa or Apple devices audio translated into several languages

( 6 mins)
  • China’s new Coast Guard Law is part of a long-term administrative and legal reform effort and does not signal near-term escalation of territorial and maritime disputes in the South and East China Seas.
  • However, Tokyo and some Southeast Asian capitals view the new law with suspicion, given China’s increasing assertiveness on maritime issues in recent years.
  • Consequently, the law may create a new obstacle to compromise on maritime issues, by worsening domestic political sentiment towards China in these countries.

China’s new Coast Guard Law (CGL) is mainly an effort to establish a clear legal framework to define the Chinese Coast Guard’s (CCG) responsibilities and authority, following a nearly decade-long administrative reshuffle. An encounter in disputed waters that leads to unplanned escalation remains a risk, especially given the increased US and Chinese naval activity over the last year, but the CGL probably does not indicate a major policy shift in Beijing’s approach to maritime issues.

Beijing’s basic strategy in the South China and East China Seas is to avoid any acute incident that would bind the US more closely with regional allies and partners, while waiting for the balance of regional power to shift gradually in China’s favor. The new law reinforces this long-term strategy. Chinese leaders believe that the US will become less willing and able to resist Chinese enforcement of its maritime and territorial claims, enabling the CCG and the Chinese navy to enforce those claims more aggressively against other claimants. But Beijing expects this process to take years, if not decades, and will seek to avoid destabilizing confrontation in the meantime. Last year, Chinese leaders reportedly instructed military personnel not to fire the first shots in any South China Sea incident.

Legal reform, not escalation

The background to the CGL is a comprehensive restructuring of China’s maritime law enforcement apparatus. In 2013, China merged four distinct agencies into the CCG: the China Marine Surveillance, Maritime Police, Fishery Law Enforcement, and the Anti-Smuggling Police. In 2018, authority over the enlarged CCG was transferred from the civilian State Oceanic Administration to the People’s Armed Police, which had itself recently been placed under the command of the military. But the CCG lacked a clear legal framework, and instead depended on laws governing the various merged agencies. Given differences between those various laws, the CCG relied for standardization on a law governing use of force by police, which was not specifically designed for maritime law enforcement.

The new law fills this legal vacuum. It defines the types of force the CCG can use and when, as well as the criteria for escalation. The law defines conditions for three escalating categories of weapons: “police equipment” like high-pressure water cannons, tear gas, and handcuffs used for intercepting unauthorized vessels; hand-held weapons like guns for use mainly when a vessel may be carrying criminal suspects; and ship- or airborne weapons for counterterrorism or “violent incidents at sea.”

Regional worries

China’s CGL is consistent with national laws in force elsewhere in the region. Nevertheless, China’s growing maritime power and increasing assertiveness in disputed areas have caused rival claimants to view the law with concern. The US State Department also expressed concern last month that “China may invoke this new law to assert its unlawful maritime claims in the South China Sea.” The State Department also reaffirmed a Trump-era change in the official US position on the South China Sea that explicitly rejecting almost all of China’s maritime claims.

Tokyo has been particularly alarmed. Even before the CGL was introduced, the Japanese government was concerned about the routinization of the CCG’s presence around the disputed Senkaku/Diaoyu islands. In 2020, Chinese Coast Guard vessels pursued Japanese fishing boats around the island on several occasions, which Tokyo sees as a threat to its administration of the islands and their surrounding waters. The threat of “grey zone” challenges to Japan’s control, such as an attempted landing by paramilitary personnel or activists, has been a major concern for Tokyo and Washington over the past decade. Since Joe Biden’s election victory, the Suga administration has repeatedly sought to shore up deterrence in the East China Sea by seeking reassurance from Biden and other senior administration officials that the alliance extends to the disputed islands.

Despite the Biden administration’s efforts to reassure Japan, Tokyo is bracing for a prolonged period of heightened tensions in the East China Sea. In the month since the law was promulgated, CCG vessels entered the contiguous zone around the islands on 26 days and entered what Japan claims as its territorial waters six times, including one time with a vessel that appeared to be armed with an autocannon. The latter figure is the highest level since 2016; in 2020, CCG vessels entered the contiguous zone a record 333 times but refrained from entering territorial waters.

The Suga administration and the ruling Liberal Democratic Party (LDP) are currently debating whether Japan needs to make its own legal changes to signal how the Japanese Coast Guard (JCG) and Maritime Self-Defense Forces (MSDF) could respond to hostile activity. On 25 February, the government clarified that Japan’s coast guard law would allow the JCG to fire upon a foreign vessel involved in an illegal landing on Japanese territory, pursuant to the JCG’s police powers. However, while some hawkish LDP members want legal changes to clarify the MSDF’s role in these scenarios, the Suga administration may be reluctant to make it easier to escalate to a standoff between the two navies.

In the meantime, the two coast guards will continue to operate in close proximity around the disputed islands, and growing alarm over China’s activities will likely prevent any attempt to restart the diplomatic engagement that was suspended by Covid-19. Between the new tensions in the East China Sea, domestic sentiment opposing China’s behavior in Hong Kong and Xinjiang, and the Suga administration’s desire to coordinate with the Biden administration on China policy, a new deep freeze in relations between Japan and China looks more likely.

Maritime claimants in Southeast Asia are similarly pessimistic. The head of Indonesia’s Maritime Security Agency described the law as China “becoming more assertive” in the South China Sea. The Philippines issued a diplomatic protest, saying it was strongly opposed to the application of the CGL outside of China’s “maritime entitlements,” with the foreign secretary calling it a “verbal threat of war.” The new chief of the armed forces said Manila would deploy more naval assets to protect the country’s fishermen.

While Beijing may disagree with these interpretations of its intent, the law will increase negative domestic perceptions of China. Such perceptions which could further complicate efforts to formulate a code of conduct for encounters between maritime law enforcement forces in the region. China and 20 other Asia Pacific countries agreed on a Code for Unplanned Encounters at Sea in 2014, but this agreement only governs naval ships and aircraft, not coast guards.