The Standing Committee of China ’ randomness National People ’ s Congress passed the China Coast Guard ( CCG ) Law ( 海警法 ) on Jan. 22, and the police is scheduled to take effect on Feb. 1. The modern law hasn ’ metric ton attracted tons of attention, but it violates the United Nations Convention on the Law of the Sea ( UNCLOS ) .
The transfer builds on other shifts that have militarized China ’ south nautical jurisprudence enforcement apparatus. In 2013, China created the CCG Bureau ( 中国海警局 ), which unites the previously separate maritime law enforcement agencies known as the Five Dragons : the China Marine Surveillance, the CCG, the China Maritime Patrol, China Fisheries Law Enforcement Command ( 中国渔政 ) and the General Administration of Customs. The CCG was reorganized farther into the chinese People ’ second Armed Police Force Coast Guard Corps ( 中国人民武装警察部队海警总队 ) in 2018 and came under the command of the People ’ s Armed Police Force. This change led to some practical shifts. The CCG has been transformed into a military-like administration under the centralized command of the Chinese Communist Party Central Committee and the Central Military Commission ( 中央军事委员会 ), at least from the vantage point of a command and control structure. This engage structure mirrors that of the People ’ second Liberation Army ( PLA ) .
Putting military organizations in bang of nautical police enforcement is not unique to China and is not a problem in itself. In the United Kingdom, for exercise, the dark blue performs coast guard duties. And in some countries—as is the case with Italy ’ sulfur Carabinieri and France ’ s Maritime Gendarmerie—the military takes on jurisprudence enforcement and coast guard duty duties. Others, like the U.S., have coast guard units that are responsible for nautical law enforcement but are considered an extra armed effect, separate from the naval outgrowth. By contrast, Japan stipulates in Article 25 of the Japan Coast Guard Law that “ [ n ] othing in this Act shall be construed as authorizing the Japan Coast Guard ( hereinafter JCG ) or its personnel to be organized, trained, or to perform military functions ” and specifies that it is a civilian slide defend agency.
Reading: China’s New Coast Guard Law and Implications for Maritime Security in the East and South China Seas
In the shell of the CCG, it is a nautical law enforcement organization that does not deny that it is a military force even under external law .
Wang Wenbin, deputy imperativeness secretary of China ’ s Ministry of Foreign Affairs, said at a press league on Nov. 12, 2020, that the “ announcement ” of the CCG Law enacted this clock “ is a normal legislative activity of the [ National People ’ s Congress ], and the relevant contents of the draft are in cable with external conventions and practices of many countries. China ’ south policy and placement on maritime issues remain unchanged. ” In other words, China argues that all of the articles of the CCG Law are completely legitimate and lawful as a matter of international law, but a closer spirit at the text of the jurisprudence reveals that it differs from the provisions of UNCLOS, to which China is a party, vitamin a well as from department of state practices .
Vague Wording of China ’ s Jurisdictional Waters
article 1 of the CCG Law stipulates its purpose : “ This Act is enacted to establish norms and guarantees for the CCG organization and its employees to fulfill their responsibilities in accord with the law, to protect the sovereignty of the State, and to safeguard the legitimate interests of the public, corporations, and other organizations. ” Article 2 says the People ’ sulfur Armed Police Force ’ s Coast Guard, that is, the coast guard arrangement, shall uniformly perform maritime rights enforcement duties. With respect to the waters in which the CCG operates, Article 3 stipulates that “ the CCG Organization shall conduct police enforcement operations in the waters under the legal power of China and in the airspace above the waters under the legal power of China, and apply this Law. ” Under the UNCLOS, the waters under the legal power of a state are the internal waters, territorial ocean, contiguous partition, exclusive economic zone and the waters of the continental ledge ( including the extended continental shelf ). But China ’ second position on jurisdictional waters in the South China Sea has long clashed with the UNCLOS text. China claims the nine-dash-line in the South China Sea. The roots of the nine-dash-line date bet on to 1 December 1947, when the Government of the Republic of China ( R.O.C. ) promulgated two documents created by the Ministry of the Interior : The Cross Reference Table of the New and Old Names of the South China Sea Islands and The Location Map of the South China Sea Islands. These documents depicted an eleven-part, u-shaped note that encompassed the Spratly Islands and the Paracel Islands. This cable was redrawn when territorial rights to the Bach Long Vi Island in the Gulf of Tonkin were transferred from the P.R.C. to Vietnam in 1953, changing the eleven-dash-line to a nine-dash-line. This is the line that has since come to be known as the “ nine-dash-line ”. In 2009, China submitted a note verbal to the United Nations. In the note verbal, a map was attached and a huge sphere of the South China Sea was surrounded by nine-dash-line and China claimed that “ China has indisputable sovereignty ” over the area inside of the dart lines belonging to China without explaining the reasons for the transfer. Article 14 of China ’ second 1998 Exclusive Economic Zone and Continental Shelf Act stipulates that “ the provisions of this law shall not affect the historical rights of China ” and recognizes the being of waters other than the exclusive economic zone and continental shelf over which China exercises jurisdiction. The same police besides adds historic waters other than those recognized by the UNCLOS as China ’ s jurisdictional waters by using the formula “ other jurisdictional waters. ”
China has faced pushback in international forums over its down claims. The 2016 South China Sea Arbitration Award denied China ’ s position, concluding that “ China ’ s claim to historic rights to the living and inanimate resources within the ‘ nine-dash line ’ is inappropriate with the convention to the extent that it exceeds the limits of China ’ randomness nautical zones as provided for by the Convention. ” The award reasoned that “ upon China ’ second accession to the Convention and its introduction into force, any historic rights that China may have had to the surviving and inanimate resources within the ‘ nine-dash line ’ were superseded, as a matter of jurisprudence and as between the Philippines and China, by the limits of the nautical zones provided for by the Convention. ” Thus, the South China Sea Arbitration Tribunal concluded that the Convention superseded any historic rights or other sovereign rights or jurisdiction in the overindulgence of the limits imposed by the Convention. With this govern, the South China Sea Arbitration rejected China ’ s claims of historic rights within the nine-dash-line. In total, China ’ s claim of its sovereignty in the South China Sea is baseless as a matter of external law. however, China has refused to implement this rule, calling it illegal and invalid .
The new CCG Law again uses the give voice “ waters under the jurisdiction of China ” and clearly states that the CCG will conduct police enforcement operations to protect maritime rights and interests in waters over which it originally could not exercise legal power under the UNCLOS ( waters within the nine-dash agate line in the South China Sea ). This purpose was acquit in Article 74 ( 2 ) of the draft of the CCG Law, announced on 4th November, 2020 included “ other waters under the jurisdiction of the People ‘s Republic of China ” in summation to home waters, territorial waters, adjacent zone, exclusive economic zones and continental shelf defined under the UNCLOS. however, the definition was deleted when the newfangled CCG police was adopted and China ’ sulfur intention behind “ waters under the jurisdiction of China ” was hidden .
The impingement of China ’ s refusal to budge from this position may be dramatic. Conflicts with Vietnam and the Philippines in the South China Sea seem inevitable. In addition, based on the 1992 Law on the Territorial Sea and the Contiguous Zone, China has unlawfully exercised its legislative legal power and established territorial waters around the Senkaku Islands, which are japanese territory. China ’ s new domestic law adds to the set of tools that China can use to claim the waters as “ waters under the legal power of China ” and exert enforcement jurisdiction over Japan .
condition of the China Coast Guard and Defense Operations
A more significant component of the new CCG Law is Article 83, which stipulates that “ the CCG Organization shall carry out defense operations and other missions in accordance with the National Defense Law, the Armed Police Law, and early relevant laws, military regulations, and orders of the Central Military Commission. ” In other words, it clearly states that the CCG is an arrangement with the dual functions of a dark blue conduct defense operations in waters under its legal power ( military activities ) and a nautical law enforcement agency ( law enforcement activities ). The police transformed the CCG into an arrangement with the mission of home defense mechanism .
such cooperation between the CCG Bureau and the PLA Navy has already begun, and in July 2020, a joint exert was held between the CCG Bureau and the PLA Navy on Woody Island ( Yongxing Island ) in the Paracel Islands. In this exert, the PLA Navy ’ s Type 071 landing ship and other vessels participated. The CCG Bureau ’ randomness troops, supported by the navy, landed on the island and conducted a exercise to subdue the resist citizens. Bryan Clark, a senior chap and naval adept at the Washington-based Hudson Institute, said that the exercise was not about simulating an attack on another military force but about using the military in a police action to suppress potential civilian agitation .
A preparatory pace to Prevent Japan From Strengthening Its Effective Control Over the Senkakus
article 12 of the CCG Law stipulates the responsibilities of the CCG Organization as follows :
( i ) In the waters under our legal power, patrol, exercise watchfulness, take duty on key islands, pull off and protect maritime boundaries, and prevent, restrict, and eliminate acts that threaten the sovereignty, security, and maritime interests of the nation. ( two ) To protect the safety of key nautical targets and critical activities, and to take necessity measures to protect the guard of samara islands, arsenic well as artificial islands, facilities and mechanisms in the single economic zone and continental ledge .
article 20 authorizes the CCG Organization to regulate the suspension of illegal activities, including installing facilities and buildings by foreign organizations and individuals, or to regulate the improvement of the site within a stipulate time limit. In the shell of refusal to stop illegal activities or refusal to make improvements within the time limit, the law authorizes the CCG Organization, when necessary, to pursue assorted punitive measures : to remove the facilities and buildings in accord with the law in a casing where foreign organizations or individuals construct buildings or structures, or to install versatile types of fixed or floating devices in the waters and islands under the jurisdiction of China without the permission of the competent authorities of China .
With the increasing apparent motion of Chinese public vessels around the Senkaku Islands, if Japan develops a port, builds a facility where civil servants are stationed, or differently works to strengthen its effective dominance of the islands, Article 20 of the domestic law makes it more probable that the CCG will remove them .
compulsory Measures Against Foreign Warships
article 21 of the CCG Law states that in cases where extraneous military vessels or government vessels operating for noncommercial purposes violate China ’ s domestic laws in waters under China ’ second jurisdiction, “ the CCG shall have the right to take necessary security and see measures to restrain extraneous military vessels and alien vessels used for non-commercial purposes in waters under China ’ mho jurisdiction from violating the laws or regulations of China. For those who refuse to leave and cause serious harm or threat, the Maritime Security Organization has the right to take measures such as exile and forced towing. ” In Japan ’ south case, potentially vulnerable vessels include patrol vessels of the Japan Coast Guard .
This opens the door to potential incompatibilities with the UNCLOS. The convention provides in Article 32 that, with respect to the territorial sea, “ with such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes. ” And with involve to the auspices and conservation of the marine environment, Article 236 of the UNCLOS states that “ [ metric ton ] he provisions of this Convention regarding the security and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, lone on politics non-commercial service. ” The convention grants unsusceptibility to military vessels, military support vessels and government ships from the enforcement jurisdiction of coastal states. If the CCG were to take measures such as forcibly towing warships or government vessels, it would be a clear rape of the UNCLOS .
furthermore, Article 22 of the CCG Law states that “ when the reign, autonomous rights and jurisdiction of a State are confronted with an at hand risk of unlawful misdemeanor or illegitimate misdemeanor by foreign organizations and individuals at ocean, the CCG Organization shall, in accordance with this Law and early laws or regulations, take all necessary measures, including the use of weapons. ” In addition, Article 47 stipulates that “ officials of the CCG Organization may use weapons in accordance with the law, and may directly use weapons if there is no prison term for warning or if there is a hazard of unplayful damage after giving warning. ”
Until now, the use of weapons by the CCG has been conducted in accordance with a series of early chinese domestic laws : Articles 10 and 11 of the People ’ s Police Law ; Articles 2, 4 and 9-11 of the People ’ randomness Police Regulations on Security Equipment and Use of Weapons ; and Article 9 of the Regulations on Maritime Law Enforcement Activities of Public Security Organs. All of them state, “ Law enforcement personnel of marine patrol vessels may fire shots only when necessity. When firing shots, a verbal warning or a warn to fire must broadly be issued first. They shall not fire unnecessarily and shall not shoot at the vessel under probe unnecessarily. The habit of weapons should be limited to subduing the other party. ”
In comparison, Article 22 of the CCG Law expands the scope of the use of weapons to include foreign organizations. Article 47 of the lapp jurisprudence can be read as a planning that permits the more aggressive use of weapons. chinese government vessels, which call the waters around the Senkaku Islands their own territorial waters under their sovereignty and track japanese fishing vessels, have not been excluded from the possibility of using weapons, although Article 22 besides has a requirement for “ improper misdemeanor of individuals ” and “ in event of at hand danger. ” In early words, the CCG has authority to use weapons without warning against both government vessels and civilian vessels as a matter of its domestic law .
These changes present challenges for other countries in the Pacific. Japan, in detail, needs to be prepared to respond both positionally and legally to these new developments by China. In the event of private vessels such as fish boats, the International Tribunal for the Law of the Sea, in its predominate on the Saiga case in 1999, stated the postdate three requirements : ( a ) The consumption of weapons must be avoided adenine much as possible, ( b ) the manipulation of weapons must not exceed the necessary limits and must be reasonable, and ( carbon ) the use of weapons must not endanger human life. If a chinese vessel were to do things to a japanese fishing vessel that go beyond those parameters, it would be a violation of external law .
establishment of Temporary Maritime Alert Zones in Jurisdictional Waters
What is particularly noteworthy about this CCG Act is the captive of the provision on establishing “ temp maritime alarm zones. ” Article 25 of the CCG Law states :
A CCG arrangement at the level of a peasant CCG agency or above may set up a nautical impermanent alert zone in the waters under the legal power of China and restrict or prohibit the passing or hold on of ships and personnel if any of the pursue circumstances exist
( 1 ) When it is necessary to carry out nautical base hit and security missionsRead more: What is the Maritime Industry?
( 2 ) When it is necessary to control illegal criminal activities at sea
( 3 ) When it is necessary to deal with maritime collision incidents
( 4 ) When it is necessary to protect marine resources and the ecological environment
( 5 ) When it is otherwise necessary to set up an extra nautical alert zone .
The real trouble will come if and when China tries to establish a maritime impermanent alert zone with the justification of carrying out maritime security and security missions, as referenced in Article 25 of the CCG law. UNCLOS provides in Article 25, paragraph 3, that “ the coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specify areas of its territorial sea the impeccant passage of foreign ships if such suspension is all-important for the auspices of its security, including weapons exercises. such suspension shall take effect merely after having been punctually published. ”
If the constitution of a nautical temp alert zone in China ’ s territorial waters meets this requirement, specially the prerequisite that the navigation of foreign vessels be carried out “ temporarily ” without “ legal or de facto discrimination, ” no problem will arise. however, if a regulation that “ discriminates de facto ” is imposed on a foreign country for a long period of time, it would violate the UNCLOS .
The case of adjacent waters requires particular attention. Article 33 ( 1 ) ( a ) of the UNCLOS allows coastal states to impose regulations on conterminous zones in ordering to “ prevent violation of its customs, fiscal, immigration or sanitary laws and regulations within its district or territorial sea. ” however, Article 13 of China ’ s Law on the Territorial Sea and the Contiguous Zone extends its jurisdiction over “ guard ” to its adjacent zones, stating that “ China has the assurance to exercise powers within its adjacent zone for the function of preventing or punishing misdemeanor of its security, customs, fiscal sanitary laws and regulations or entry-exit see within its estate territories, inner waters or territorial sea. ” When read in concurrence with this law, the CCG law may enable China to establish a temp maritime zone in the contiguous zone, which would violate the UNCLOS .
In the case of the constitution of a irregular maritime alert partition in the single economic zone or the high seas for the aim of designating the expected bring zone for military exercises or know projectile tests, its legitimacy will be judged based on whether the moves in interview meet the requirement of “ due attentiveness ” to other states. Article 56 ( 2 ) of the UNCLOS states that “ in exercising its rights and performing its duties under this convention in the exclusive economic zone, the coastal State shall have due respect to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. ” A distinguish UNCLOS provision, Article 87 ( 2 ), discusses the freedom of the high seas : “ [ T ] hese freedoms shall be exercised by all States with due respect for the interests of other States in their exercise of the freedom of the high seas, and besides with due regard for the rights under this convention with respect to activities in the Area. ” If China claims that the waters within the nine-dash line are “ waters under the legal power of China ” and unilaterally establishes a nautical impermanent alert zone in waters that in the first place belong to the exclusive economic zone of early states, the hypothesis of violating the UNCLOS may arise. The newly jurisprudence adds to China ’ s legal arsenal to make frivolous nine-dash line claims. For example, if a temp maritime alert zone is established by China in the waters surrounding a coastal state ’ second fishing grounds, facilities, or structures for resource development, or in the waters adjacent to a major international transport route, it would not be giving “ due regard ” to early states as required by the UNCLOS. If the zone is established around Taiwan, as Capt. Toshinari Matsuo discusses, this may have a unplayful impact on Taiwan .
An illustration of China ‘s Nine-Dash Line ( generator : hypertext transfer protocol : //www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf
The Legal Status of China’s Government Vessels
The vessels of the taiwanese CCG repeatedly trespass into the territorial waters around the Senkaku Islands. They have a blank hull with blue markings and are categorized as government official vessels that fall under the category of “ other government embark operated for non-commercial purposes, ” as defined in Article 31 of the UNCLOS. The wonder is whether the patrol ships of the CCG, which have been given a raw function of defense, have changed their legal condition as a result of the CCG Law from that of government ships to that of warships .
article 29 of the UNCLOS defines a warship as “ a ship belong to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer punctually commissioned by the politics of the State and whose name appears in the allow 35 military service list or its equivalent, and manned by a crew which is under regular armed forces discipline. ”
The patrol are normally a civilian law enforcement agency, so police units are treated as civilian institutions and receive general protective covering from attack during armed battle. The patrol vessels of the JCG, for exemplar, are civilian nautical law enforcement agencies, as outlined by the provisions of Article 25 of the JCG Law. The CCG confront, though not however attacking, the JCG vessels in the Senkakus are not merely nautical law enforcement agencies under the domestic jurisprudence of China ’ s CCG Law but besides are vessels carrying out military defense mission operations .
Since the principle of police proportion applies to the use of weapons by maritime law enforcement agencies, the JCG is only equip with machine guns ranging from 12.7 mm to 40 mm in quality. however, the CCG has patrol boats equipped with destroyer-class 76 millimeter guns. If taiwanese public vessels are equipped with large-caliber guns or missiles whose use can not normally be explained by the principle of police proportionality—and if they have the aim of carrying out organized hostilities—the CCG ships may be treated as military forces under the police of armed conflict if the substantive criteria are applied. Japan needs to keep a close eye on whether there will be any changes in the equipment of the CCG vessels following the passage of the CCG Law .
so, will CCG vessels have the legal condition of warships ? This should be decided based on whether or not these vessels are besides registered as warships of the PLA Navy, which is ill-defined at this point .
Answers about the legal condition of CCG vessels may come from looking to another international law text, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea. The San Remo Manual adopts the UNCLOS definition of “ warships ” at Rule 13 ( g ). The manual of arms defines “ auxiliary vessels ” at Rule 13 ( h ) as “ vessels either owned by or under exclusive master of the arm forces of a State and used for the clock being on government non-commercial service in support of the armed forces. ” The definition of “ aide vessels ” seems much more applicable to the CCG vessels than does the definition of “ warships. ” Thus, if the vessel in question were not registered as a chinese warship, the CCG vessel would be considered an auxiliary vessel. Under Article 236 of the UNCLOS, both military vessels and aide vessels enjoy the lapp sovereign exemption as government vessels, and careless of which word picture is adopted by the flag state, the vessel is entitled to sovereign unsusceptibility in peacetime .
In armed conflict, naval war regulations traditionally use categoric prey survival criteria. Legitimate targets at ocean are warships, military auxiliaries and some merchant ships meeting certain conditions, and these vessels are therefore capable to attacks without warning. In addition, Paragraph 13.21 of the San Remo Manual states that “ only warships can exercise aggressive rights, ” and if a CCG vessel, which is an aide vessel not registered as a warship, were to exercise aggressive rights, it would be a rape of external jurisprudence .
Implications for the Japan Coast Guard
If a vessel early than a warship, including auxiliary vessels and government vessels, is to be converted to a warship, Article 6 of the Hague Convention No. 7 of 1907 ( Convention on the conversion of Merchant Ships to Warships ) requires the area in question to, “ ampere soon as possible, announce such conversion in the number of war-ships, ” and this seems to become customary international jurisprudence .
JCG patrol vessels may confront CCG vessels assigned defense missions under the CCG Law. however, there are meaning differences between CCG vessels and JCG vessels that should be noted in arm battle .
According to Article 80, Paragraph 1 of the Self-Defense Force Law, in the event of a defensive structure operation based on Article 76, Paragraph 1 or a security process based on Article 78, Paragraph 1, the choice minister “ may bring all or separate of the JCG under the control of the Minister of Defense if it is deemed specially necessary, ” and Paragraph 2 of the same article further stipulates that in this case, “ the Minister of Defense shall be given command of the JCG as specified by a Cabinet Order. ” tied if they are under the instruction of the minister of refutation, american samoa long as they conduct only CCG duties as earlier, they can be considered unmilitary. To ensure unmilitary condition, Article 103 of the Self-Defense Force Law Enforcement Order states that “ the Minister of Defense ’ mho instruction over all or separate of the JCG pursuant to the provision of Article 80, paragraph 2 of the [ Self-Defense Force ] Law shall be given to the Commandant of the Japan Coast Guard. ” Thus, in contrast to CCG vessels, the status of JCG patrol vessels will never be changed from civilian ships, tied in armed conflict. consequently, the operation of Article 6 of the Hague Convention No. 7 will not be applied .
conclusion
The final-day communiqué of the fifth Plenary session of the 19th Central Committee of the Communist Party of China in 2017 states, “ We will carry out Xi Jinping ’ second firm military ideology and the military strategic policy of the new era, and secure the goal of striving for the hundredth anniversary of the establish of the military in 2027. ” It will be necessity to keep a close up eye on whether the goals referred to hera are policy goals related not lone to strengthening and modernizing the People ’ randomness Liberation Army but besides to broader Chinese Communist Party goals for Taiwan and the Senkakus. China ’ second adversaries should prepare for the fact that, by 2027, China will see itself as having mustered sufficient force to counter the JCG in the Senkakus and the Self-Defense Force.
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In the South China Sea, there have been instances of China mobilizing fish boats and early vessels to conduct demonstrations in territorial disputes and nautical limit disputes. A draw of attention is presently being paid to the legal condition of such fishing boats when they are armed and deployed in arm conflict. One example of China ’ mho habit of fishing fleets, known as maritime militia, in armed conflict is the 1974 incident between China and South Vietnam over the Paracel Islands. such incidents are likely to occur in the Senkaku Islands a well .
A more realistic scenario, however, is that in peacetime, nautical militia will secretly land on the uninhabited Senkaku Islands, fly the chinese pin and refuse to comply with the JCG ’ s request to leave. It seems that the time is approaching that Japan should seriously consider how the JCG and the Self-Defense Force respond in that case. This question is relevant for the United States, besides. President Biden reaffirmed during a call conversation with Prime Minister Yoshihide Suga that Article 5 of the Japan-U.S. Security Treaty, which stipulates roast department of defense obligations, applies to the Senkaku Islands. however, in answer to China ’ s conjectural occupation of the uninhabited islands, which in the former scenario would not result in a single death, the United States would be faced with a unmanageable choice—the alleged “ Senkaku Paradox ” —as to what extent it will participate in the bad operation to retake the islands without escalating into a Sino-American war. With such a situation in judgment, Japan should strengthen its own response capabilities to prepare for potential chinese aggression