China’s new Coast Guard Law has drawn concern and criticism from the United States, Japan, the Philippines, and other regional governments, as well as academics. Passed by the National People’s Congress on January 22, the law contains strong language regarding the China Coast Guard’s (CCG) authority to prevent infringement of China’s sovereignty and maritime rights. Others in the region are worried that passage of the law is a prelude to an even more assertive prosecution of China’s disputed maritime and territorial claims in the South and East China Seas.
To better understand whether China’s new law differs from international standards in a way that might increase the risk of violent conflict, AMTI examined the guiding legislation of several other regional coastguards with a specific focus on rules governing the use of force. Along with legislation, AMTI examined publicly-available policy manuals on the use of force for some coastguards, including those of the United States and the Philippines. While many coastguards classify actions such as boarding, towing, or even verbal warnings as forms of non-violent force, this analysis focuses exclusively on the use of weapons, including handheld firearms and shipborne weapons.
Use of Force Rules for Select National Coastguards
|Authorized when facing imminent danger to coast guard assets, lives, or the lives of others||Authorized against vessels attempting to flee or resisting arrest||Authorized to defend sovereignty or sovereign rights|
|Philippines||Some cases||Some cases||No|
AMTI’s key findings are summarized in the table above. This is by no means exhaustive, and in many cases the rules of force that appear ambiguous in publicly available documents are likely clarified through internal policy guidance to which AMTI does not have access. But it is clear that almost all the coastguards examined are permitted to employ weapons in defense of themselves and others. Authorization to use weapons to stop a fleeing vessel suspected of committing a crime, or one resisting boarding and arrest, is similarly common. But the use of weapons for the broader purpose of defending national sovereignty or sovereign rights is a more complicated affair.
Use of Force and Sovereignty
China’s new law contains unusually explicit language in Article 22 regarding the application of force in situations related to sovereignty and maritime rights. Article 22 reads:
When national sovereignty, sovereign rights, or jurisdiction is being illegally violated at sea by a foreign organization or individual, or is in imminent danger of illegal violation, a coast guard agency shall have the power to take all necessary measures including the use of weapons to stop the violation and eliminate the danger according to this Law and other applicable laws and regulations.
At first glance this would appear to give CCG vessels wide latitude to use weapons against, for example, a foreign vessel fishing in China’s claimed exclusive economic zone (EEZ). The law gives the power to “take all necessary measures including the use of weapons” to stop not just an ongoing violation, but even an “imminent danger” of violation.
However, the law stipulates that such measures be taken “according to this Law and other applicable laws and regulations.” This seemingly subjects Article 22 to restrictions laid out in Chapter VI of the same law, which are largely in line with those of other coastguards. Article 47, for instance, deals with the use of handheld weapons. It specifically authorizes such force in the case of illegal production activities such as fishing only when:
A foreign ship enters the waters under the jurisdiction of China to illegally engage in production activities, refuses to obey an order to stop or refuses to accept boarding or inspection by other means, and the use of other measures is insufficient to stop the illegal act.
This conditions the use of weapons not only on foreign ships resisting boarding or attempting to flee, but also on other measures to stop the activity being “insufficient”. The use of shipborne weapons is subject to even greater restriction under Article 48, which limits their use to anti-terrorism operations, incidents of serious violence at sea, or attack on CCG vessels or aircraft. These restrictions, strictly applied, would seem to preclude the use of weapons for the sole offense of infringing on China’s sovereignty or sovereign rights.
The contrasting tone of these two sections of the new Chinese law leaves room for interpretation. Article 22 does not specifically reference Chapter VI, or any other legislation. Future policy guidance, not necessarily made public, will likely determine whether the restrictions outlined in Articles 47 and 48 or the broad powers authorized in Article 22 take precedence in specific circumstances. But this is not unusual; other coastguard laws contain similar ambiguities resolved by policy guidance, which can shift as needed over time.
Use of Force for Other Coastguards
Vietnam is the only other country examined by AMTI which mentions sovereignty, sovereign rights, and/or jurisdiction in its coastguard legislation. Article 8(2) of the 2018 Law on the Vietnam Coast Guard (VCG) counts the protection of “sovereignty, sovereign rights, and jurisdiction” as one of the essential duties of the VCG. The law further specifies in Article 14 that the VCG is generally authorized to use force in the performance of its duties. However, it also specifies that this use of force falls into two distinct categories: force used in the performance of military duties, and that used for law enforcement. The latter is restricted to specific cases defined in the text of Article 14, which do not include the defense of sovereignty or sovereign rights, while the former is governed by the Law on Management and Use of Weapons, Explosives and Support Instruments. This law makes no specific mention of sovereignty or sovereign rights, leaving the VCG’s legal authorization to apply force in such scenarios ultimately unclear, at least in publicly available documents.
While the Republic of Korea’s national coastguard legislation does not include a provision on national sovereignty or sovereign rights, it does permit the Korean Coast Guard to use force in cases of national security. Specifically, Article 17(2.1) of the Coast Guard Affairs Act stipulates:
[A] coast guard police officer may use firearms for public use, in addition to individual’s firearms in cases of conducting an operation related to national security, such as a counter-espionage operation and a counter-terrorism operation.
Use of force in these instances is not restricted by Article 10-4 of the Act on the Performance of Duties by Police Officers, which circumscribes the use of force in other circumstances. “National security” is not comprehensively defined. But it would more easily encompass challenges to territorial sovereignty than to sovereign rights (such as illegal fishing in the EEZ). Still, the law leaves ample room for interpretation.
The case of Japan illustrates how national legislation can be interpreted by later policy guidance to make the use of force more or less restrictive. Neither the Japanese Coast Guard Law nor the Police Duties Execution Act specifically mention the protection of sovereignty or sovereign rights as a case in which force is authorized. However, on February 25, the Japanese government told a panel of Liberal Democratic Party lawmakers it had “confirmed” an interpretation that any attempt by foreign vessels to land on the disputed Senkaku Islands would be considered an act of violence, thus authorizing the Japan Coast Guard to use weapons to prevent the landing under police use of force rules. This public interpretation applies to only one specific case of a challenge to sovereignty and does not seem to cover challenges to sovereign rights in the EEZ or continental shelf. But it highlights how later policy guidance can interpret use of force authorizations in ways that were not immediately clear in the legislative text.
In the United States and the Philippines, maritime law enforcement activities are regulated by a number of statutes, but use of force authorizations are largely a matter of coastguard policy, not law. In peacetime, the U.S. Coast Guard operates under the authority of the Department of Homeland Security and is subject to its use of force policies, which largely conform with standard police use of force rules common among most of the coastguards examined here. The USCG also has its own internal policies on the use of force which further clarify these rules, but those are not readily available to the public.
Among the agencies examined by AMTI, the Philippine Coast Guard (PCG) has the most restrictive publicly available rules governing the use of force. The 2020 PCG Manual on the Rules on the Use of Force for Maritime Security and Law Enforcement Operations has detailed instructions for what the PCG should do within three different zones—internal, archipelagic, and territorial waters; the contiguous zone; and the EEZ — when confronting each of three different types of vessels: Philippines-registered non-state actors; foreign state actors; and foreign non-state actors. Under no circumstances, even within internal waters, can the PCG use force against a foreign state actor. It is instead instructed to pursue evasive maneuvers and avoid confrontation while coordinating with the Armed Forces of the Philippines. The PCG has somewhat more leeway to act against non-state foreign vessels but is still significantly more restricted than other coastguards. The PCG can use violent force only in cases of self-defense within internal waters, archipelagic waters, or the territorial sea. In uncontested areas of the EEZ, it is only authorized to use non-violent force (such as water cannons). The manual is silent on contested areas of the EEZ, suggesting PCG actions taken there are to be guided by more fluid, and sensitive, policy guidance.
Article 22 is not the only controversial passage in China’s new coastguard law. Equally troubling for China’s neighbors are Articles 20 and 21. Article 20 grants the CCG the power to order or force the removal of unapproved foreign buildings, structures, or “fixed or floating device of any kind in the waters or islands under the jurisdiction of China”:
Where, without the approval of a competent authority of China, a foreign organization or individual constructs a building or structure, or lays a fixed or floating device of any kind in the waters or island under the jurisdiction of China, a coast guard agency shall have the power to order the foreign organization or individual to stop the said violation or order removal within a specified period; and if the foreign organization or individual refuses to do so, the coast guard agency shall have the power to effectuate stoppage or force the removal.
Article 21 grants the CCG powers to issue stop or leave orders to foreign military or government vessels that violate “any law or regulation of China in the waters under the jurisdiction of China” and, if the vessel refuses and “causes serious harm or presents a serious threat,” to forcibly expel the vessel:
Where a foreign military vessel or foreign government vessel used for a non-commercial purpose violates any law or regulation of China in the waters under the jurisdiction of China, a coast guard agency shall have the power to take necessary precautionary and control measures to stop such vessel and order it to immediately leave the relevant waters; and if it refuses to leave and causes serious harm or presents a serious threat, the coast guard agency shall have the power to take such measures as forcible expulsion and forcible ejection by towing.
Article 20 seems specifically targeted at the facilities of Southeast Asian claimants in the Spratly Islands. And Article 21, if strictly applied, could lead to dangerous incidents with U.S. and other foreign military vessels conducting surveillance and other activities in China’s EEZ which are permitted by international law but forbidden by Chinese domestic legislation.
These powers—to dismantle illegal foreign structures or expel foreign government vessels operating illegally—are not explicitly listed in the other national coastguard laws examined by AMTI. But they do logically follow from the general law enforcement authorities granted to most coastguards. In fact, all the other coastguards reviewed here, with the possible exception of the PCG, would likely claim similar authorities. Articles 20 and 21 are worrying not because they authorize unique powers for the CCG, but because they suggest a readiness to make use of those powers across all waters China claims within its jurisdiction. China makes a vast but purposely ambiguous claim to jurisdiction over almost the entire South and East China Seas. Based on those claims, Article 20 could easily be interpreted as authorizing the CCG to dismantle not only foreign outposts on the Spratlys, but even floating platforms and artificial islands in the reefs and open waters of its neighbors’ EEZs. And Article 21 could likewise authorize the CCG to expel Southeast Asian law enforcement, military, and other government vessels from their own EEZs. These authorities could be used to justify the use of force in the increasingly frequent standoffs between Chinese and Southeast Asian government vessels over oil and gas, fishing, and survey activity across the South China Sea.
Articles 20, 21, and 22 suggest that China’s new Coast Guard Law is meant to signal a tougher approach to enforcing its maritime claims. These articles were seemingly drafted to address specific points of contention in the South and East China Seas. And they contrast with the rest of the law, which involves more generalized and internationally consistent language. If Articles 20, 21, and 22 were intended as a message, then it has clearly been received. Indonesia, Japan, the Philippines, the United States, and Vietnam have all expressed concern over the law, which they worry will be used to justify more aggressive actions by the CCG against China’s neighbors.