Roughly since 2013, Beijing has been gradually yet persistently eroding the foundation of the international legal order and chipping away at international resolve to safeguard the same in doing so. In the maritime space, based on the strength of what the country terms its ‘historical rights’, China has been engaged in a long-term project at consolidating its presence and hold over the rocks, reefs and islands which per the United Nations Convention on the Law of the Sea (UNCLOS) are beyond its jurisdiction. Towards this end, Beijing has employed an assortment of methods on several fronts, ranging from the construction of artificial islands in disputed waters to deploying a maritime militia which is essentially a government-supported armed fishing force for enforcing sovereignty claims in the South and East China Seas.
The most recent instance is the passing of a law which came into effect on February 1 sanctioning the country’s coast guard to “take all necessary measures, including the use of weapons when national sovereignty, sovereign rights, and jurisdiction are being illegally infringed upon by foreign organisations or individuals at sea.” Using hand-held, ship-mounted, or airborne weapons, the law empowers the coast guard to demolish structures built by other countries on islands claimed by China and even to create “exclusion zones”, as required, where vessels of other nations will not be permitted to enter. Moreover, it also allows the coast guard to check foreign vessels which are anchored in China’s “jurisdictional seas”. China claims that the law draws validation from the need to protect the sovereign and security interests of the country.
The new law is in many ways a culmination of the overreach that has been granted to and practiced by the coast guard in recent years. Several civilian maritime law enforcement agencies were merged to form a coast guard bureau seven years ago, which in 2018 became a branch of the military. China’s coast guard maintains an active presence in the East and South China Seas and the Yellow Sea, and has been frequently involved in intimidating fishing vessels from littoral neighbours as well as the sinking of these vessels at times. The coast guard has also been known to shadow Chinese fishing vessels—ready to step in if they encountered fishing vessels of other countries. It is also engaged in building ships which are larger than many naval ships in the region such as the 10,000-ton ‘Haixun 09’ with strengthened hulls that can potentially ram other vessels in what is referred to as ‘shouldering’ in naval parlance.
Reactions to the law have been sharp with Vietnam, Indonesia, Japan, and the US expressing concerns that it would make the contested waters around China more choppy and the Philippines filing a diplomatic protest describing the law as “threat of war”. The law adds to the various tools already being utilised by China for maritime intimidation and harassment and would bolster its capabilities to single-handedly exert and consolidate control over the many maritime features it has occupied. It is yet another instance of the dichotomy between Beijing’s official statements which affirm non-use of force while simultaneously exercising its capacities in ways that belie its actions.
Of the three neighbouring seas, the South China Sea is the most volatile one characterised—especially in the last few years—by a persistently tenuous environment with frequent adverse engagements between China on the one hand and the littorals or the US on the other. At times, there are issues between the littorals themselves but they are often minor in comparison to Beijing’s bullying, aggression, and flagrant violation of what constitutes legally established rights and jurisdictions. Stiff competition over depleting fish stocks alongside the unending geostrategic turmoil over competing maritime territorial sovereignty has shaken the inviolability of the rules-based order which has been in place since WWII, resulting in making the South China Sea an issue of global concern and disquiet. The South China Sea is located almost at the centre of the Indo-Pacific region, which has also simultaneously attracted global attention largely due to China’s ambiguous rise and expanding footprints.
The coast guard in many countries is vested with special powers, which can range from the use of explosives for law enforcement (Vietnam) to the change of authority from civilian command to the armed forces (US, Australia, and Malaysia), to name a few. But these special powers and changes in commanding authority are measures applicable in wartime or in extremely exigent circumstances. The difference with the new law passed by China lies in the fact that the definition has unduly broadened the scope of what the country considers as exigent circumstances; measures that are typically applied during times of crisis and war have been made permissible during standard conditions as well. Consequently, the law stands to very easily escalate and amplify situations which could have otherwise been handled differently. The implication of “jurisdictional seas” remains unclear but repeated instances of the same constituting waters beyond the limits established by the UNCLOS point to a dangerous scenario where all the vessels within the nine-dash line may become fair game for the Chinese coast guard.
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Pratnashree Basu is an Associate Fellow at Observer Research Foundation, Kolkata, with the CNED programme. She is a 2017 US Department of State IVLP Fellow ...Read More +