Beijing’s South China Sea moves have ramped up with the passing of a law allowing the China Coast Guard (CCG) to fire on what it identifies as illegal foreign vessels in waters under its jurisdiction. By virtue of China’s nine-dash line claim, this law applies to the entire South China Sea. Given that China’s claims are opposed by other South China Sea claimants as well as numerous non-claimant countries, the law has proven controversial and raises concerns over whether it will increase the risk of confrontation and conflict in the disputed waters.
The Law
On January 22, the standing committee of China’s National People’s Congress passed a new law empowering the CCG to employ “all necessary means” to stop or prevent threats from foreign vessels and specifying the circumstances under which different weapons, “handheld, shipborne, or airborne,” can be deployed, as well as allowing it to demolish structures built by other claimants in areas China considers its own. This new law is another manifestation of the CCG’s expanding role. The roles and practices of the CCG have generally been in line with those of other coast guards around the world. This specific law, however, lays out the powers and duties of the CCG in so called “jurisdictional waters,” which include the highly contested areas in the South China Sea. For now, the law amounts to a figurative shot across the bows of other claimants—but that shot could soon be literal.
Weaponizing the Coast Guard
Coast guards are not usually military forces but law enforcement agencies whose primary roles are constabulary. They are generally armed with machine guns or, at most, medium-calibre deck guns. The U.S. Coast Guard (USCG) is regulated and defined by Title 14 of the United States Code enacted by Congress. It employs various types of small arms such as handguns, shotguns, rifles, and machine guns. The USCG is both a law enforcement agency and branch of the U.S. armed forces, and during times of war or conflict, assets from the coast guard can be transferred to the U.S. Navy. The Japan Coast Guard (JCG) has been engaged in a variety of activities including criminal investigations, maritime security, and search and rescue operations. The Japan Coast Guard Law (Act No. 28 of 27 April 27, 1948, amended by Act No. 71 of 5 September 2012) provides that JCG officers and their assistants may carry a weapon to perform their duties.
The Malaysian Maritime Enforcement Agency (MMEA) was formed in 2004 and is equivalent to a coast guard. In its initial stages, the MMEA emulated the practices of the USCG and the JCG. The MMEA can be placed under the command of the Malaysian Armed Forces in times of crisis. Most of its ships originally belonged to the Royal Malaysian Navy and the Marine Police, but it has also received patrol boats from the Fisheries Department and Customs Department. Many of its Offshore Patrol Vessels are equipped with medium-range weapons, but others have only small guns for self-defense and law enforcement. The MMEA Act 2004, Part III, details the functions and powers of the agency, which allow it to stop, enter, board, inspect, and search any place, structure, vessel, or aircraft and to detain any vessel or aircraft. These powers are applicable within Malaysia’s maritime zones.
Although coast guards around the world, including the USCG, JCG, and MMEA, carry small arms on board for law enforcement and self-defense, these practices have not been as controversial as those of the CCG. The primary question surrounding the weaponization of China’s coast guard is not the kinds of weapon employed, but whether the circumstances under which it is allowed to use them comply with international practices and standards. That the new law allows the use of weapons against foreign ships at reefs claimed by China is of serious concern to other claimants and users of the South China Sea. The fact that the law authorizes the destruction of structures built by other claimants even further bolsters the CCG’s capability to safeguard national sovereignty, security, and maritime rights in the disputed areas of the South China Sea at the expense of other claimants. The new CCG law’s application over disputed areas will raise additional complications and have operational implications for other vessels, including those of the MMEA and the Royal Malaysian Navy, operating in the area. It also shows that China is increasing its presence and might in the South China Sea.
South China Sea disputes involve a wide variety of stakeholders engaged in a complex set of issues and interests. This expansion in the role of the CCG, in particular allowing it to fire on other nations’ vessels and destroy structures built by other claimants, adds to the complexity of the situation and raises the temperature in the South China Sea. The contested waterway is also a transit point and an operating area for navies and air forces of non-claimant states across the region and the globe, with these user-states relying on the freedom of navigation to conduct their activities in the South China Sea. It remains to be seen whether the new law will be applied in a way that could obstruct those freedoms.
The Way Forward
In the context of this new development, South China Sea parties, including China and ASEAN, should employ all relevant crisis management tools such as the Code of Unplanned Encounters at Sea and the ASEAN Crisis Management Mechanism to prevent incidents arising from the CCG’s enforcement of its new powers in the South China Sea. It is also important that China conforms to international laws and norms and ensure that the new law not threaten or infringe on the rights of other nations. Existing initiatives that enhance and promote maritime cooperation include the various regional and multilateral fora, such as the Heads of Asian Coast Guard Agencies Meeting, the Asia Pacific Heads of Maritime Safety Agencies Forum, ASEAN Regional Forum, the Expanded ASEAN Maritime Forum, and the ASEAN Defense Ministers’ Meeting-Plus. These fora provide broad-enough avenues for addressing issues pertaining to the South China Sea. As such, China and the other stakeholders in the South China Sea should use those platforms to discuss confidence building measures among their coast guard agencies and implement best practices for application in the overlapping maritime areas.
