The entry into force on 1st February 2021, the Chinese law on maritime policy, which raises the possibility of the use of armed force by the Coast Guard of the country, was extensively covered by the media of Southeast Asian countries and Japan. The latter feel powerless in the face of increasingly aggressive contestation by Beijing of the definition of regional maritime borders. In an already tense context, this Chinese initiative arouses the greatest distrust.
The Philippines officially protested through their Foreign Secretary Teodoro Locsin and Vietnam reiterated the necessary respect for international law and the law of the sea. Japan, faced with orchestrated incursions by Chinese coast guards, maritime militias and fishing vessels in the Exclusive Economic Zone (EEZ) and the territorial waters of the Senkaku Islands, also claimed by China under the name of Diaoyutai, expressed concern.
Tokyo fears that, under cover of this law, Beijing will take a new step in the implementation of its hybrid coercion strategies. Japanese suspicion, widely shared, is to witness the proliferation of so-called “Gray areas” at sea, that is to say tensions that do not relate to wartime or peace time and which relate to sovereignty and maritime rights.
At first glance, we can consider this law as a step towards professionalisation of the Chinese coast guard, reorganised in 2018 and dependent on the People’s Armed Police: it appeared necessary to update the existing regulations and to specify responsibilities so far divided between four maritime agencies. The aim is to define the exercise of police rights at sea in maritime areas under Chinese sovereignty and to regulate the use of force by linking it to specific situations.
The definition of the missions described in the law appears to be quite similar to those of the regional coast guards: maritime safety and security, fight against illegal activities, exploitation of maritime resources, protection of the marine environment, fisheries control. An article from the Chinese daily Global Times explains that this law brings China closer to international standards and that the Philippines does not have to worry about it.
The use of force is mentioned in chapter VI of the law , in particular through articles 46, 47 and 48. Among other cases, the law authorises the use of “handguns” against incursions by foreign vessels in waters under Chinese jurisdiction and the use of “heavy weapons” in “serious violent incidents”. However, it is clarified that Coast Guard personnel must reasonably assess the appropriate level of force based on the nature and urgency of the danger.
The question is how China will implement these provisions. International jurists are currently debating how to distinguish between the appropriate adoption of means of coercion in the application of maritime law and the abuse of force. One of the most important principles enshrined in the United Nations Charter and the United Nations Convention on the Law of the Sea (UNCLOS), or Montego Bay Convention , adopted in 1982, relates to the non-use of force and the peaceful use of the seas. This issue is particularly sensitive in the context of contested maritime areas and illegal fishing.
But for most of the countries that feel they are the target of the systematisation of Chinese incursions into their EEZ, the debate arises more in political-military terms than in legal. It is a question of taking into account the asymmetry of the maritime means present, in particular in the South China Sea between China and the countries of Asean, but also of the level of aggressiveness, which the coast guard already shows.
It is to be feared that the law of the 1st February 2021 does not encourage Chinese behaviour already observed which, under the guise of patriotism and the protection of “maritime rights”, will no longer hesitate to use force to protect the maritime areas disputed by Beijing from its neighbours. Already in June 2019, a Chinese vessel deliberately rammed and sunk a Philippine fishing vessel operating in waters near the Scarborough Reef, illegally occupied by China since 2012 to the detriment of the Philippines.
In addition, the law casts a particular shadow on the discussions underway for several years between China and ASEAN around the Code of Conduct in the China Sea , which Beijing intends to have adopted in 2021. One of the objectives of the code is to put in place mechanisms to prevent the parties involved from resorting to force in the event of a dispute.
Xi Jinping’s China has become extremely offensive in matters of maritime sovereignty over all of the seas of Asia. It estimates that more than 80% of the South China Sea, which it encompasses in a nine-line route, is part of its territory on the basis of historical rights — although the Permanent Court of Arbitration in The Hague, seized by the Philippines, ruled in 2016 that it had no legal basis to do so.
However, this nine-line route — in which Beijing has notably included the Spratly archipelago and the Paracels — spills over into the EEZs of Vietnam, Malaysia, Indonesia, Brunei and the Philippines. The latter are already regularly prevented from exploiting their maritime domain by the intervention of coast guards or maritime militias of China.
The Chinese expansion strategy and the militarisation of certain reefs transformed into artificial islands hosting radars, missile batteries and airstrips, in particular in the Spratley archipelago, are also accompanied by restrictions on the right of innocent passage of any ship, civilian or military in what Beijing considers to be its territorial waters.
Likewise, in the East China Sea, faced with their Japanese counterparts who have so far succeeded in containing them, the Chinese coastguards have a strategy of regular and numerous penetration into the maritime approaches of the Senkaku they are disputing. Finally, reunification with Taiwan, the “rebel island”, is at the heart of Xi Jinping’s project for the rebirth of the Chinese nation, the deadline for which was set by the latter at 2049, when, according to him, China will be become the world’s leading power.
This increased visibility of the Chinese coast guard, which aims to make it a more effective tool in the hands of political power, is part of a general movement to increase Chinese naval resources and to assert the status of maritime power desired by Xi Jinping. As early as 2013, the latter had created a small leading group for the defence of maritime rights. This maritime nationalism clearly serves to reinforce the legitimacy of the Chinese Communist Party. Beyond economic issues, the Chinese demands — which also put Beijing in direct contact with allies of the United States (the Philippines, Taiwan, Japan) — appear above all political and relate to regional leadership.
There are concerns that the potentially ambiguous application of China’s coastguard law will increase the risks of tensions throughout the China Seas. These risks are already observable between China, certain States bordering the South China Sea and Japan, but also between China and the United States. Indeed, the US Navy regularly conducts Freedom of Navigation Operations (FONOPS) and military maneuvers to challenge Chinese claims in the South China Sea.
Some European countries, including France, defenders of an inclusive Indo-Pacific vision involving renewed vigilance in the defence of multilateralism and international law, mean to exercise their maritime and air navigation rights in the international spaces of the area. France, a resident power, has long carried out presence missions and regular stopovers at the invitation of its partners from ASEAN. In early February 2021, his communication on the long-term mission of the Emerald nuclear attack submarine and the indication of its patrol in the South China Sea sparked an angry article in China Daily , a relay of unqualified influence from the Chinese power internationally.
The Biden administration has reaffirmed that the Senkaku Islands are covered by the Japanese-American security treaty . Its Secretary of State, Antony Blinken, intends to build on the Quad, the Quadrilateral Security Dialogue founded in 2007 around Japan, the United States, Australia and India and relaunched in 2017, and the ‘open to a Quad Plus format .
Overcoming their initial reluctance to be seen as an anti-Chinese front, the four states now assert themselves — to varying degrees — as naval powers of the Indo-Pacific. Based on law and to increase their cooperation in the field of maritime security, the competition for power between the United States and China seems to be played out at sea.
(The author is Researcher North Asia and International Maritime Security at IRSEM, Lecturer in Maritime Security, Sciences Po. theconversation.com)
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