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How Japan should deal with China’s new coast guard law by TAKEI Tomohisa

“API Geoeconomic Briefing” is a weekly analysis of significant geopolitical and geoeconomic developments in the post-pandemic world. The briefing is written by experts at Asia Pacific Initiative (API) and includes an assessment of burgeoning trends in international politics and economics and the possible impact on Japan’s national interests and strategic response. (Editor-in-chief: Dr. HOSOYA Yuichi, Research Director, API & Professor, Faculty of Law, Keio University)

This article was posted to the Japan Times on April 8, 2021:

https://www.japantimes.co.jp/opinion/2021/04/08/commentary/japan-commentary/china-coast-guard-law/

   

API Geoeconomic Briefing

April 8, 2021

How Japan should deal with China’s new coast guard law

TAKEI Tomohisa,
Former Chief of Staff for the Maritime Self-Defense Force

 

 

 

The China coast guard law, which makes clear the missions and authority of the China Coast Guard, has been criticized as being in violation of international law, with parts that are deliberately left ambiguous, leading many to have doubts over the legislation. I would like to discuss the impact that the law, which was put into force on Feb. 1, could have on Japan in maintaining maritime order, in comparison with China’s activities in the South China Sea. Political scientist Shigeo Hiramatsu points out that there exist two types of national borders in China — geographical borders and strategic boundaries. While geographical borders are internationally recognized limits of land territory, territorial waters and airspace, strategic boundaries have geographical and spatial scope related to China’s national interests and are actually controlled by the country’s military forces. Such strategic boundaries can be expanded when China is equipped with military forces backed by comprehensive national power. A typical example of China expanding its strategic boundaries is its effective occupation of the Spratly Islands in the South China Sea. China had been making claims to islands in the South China Sea ever since the nation’s founding in 1949, but it had never effectively controlled any of the land features, although it had been pressing the legitimacy of its claim of possession every now and then on the international scene or through the state-run media. After taking away the Paracel Islands from then-South Vietnam in 1974, China set up sovereignty monuments on the reefs of the Spratly Islands one after another, and using its navy, which had grown to possess the ability to be deployed to the open sea, the nation occupied six reefs in the Spratly Islands in the space of a year, starting with Fiery Cross Reef in 1987. In 1995, it occupied the Mischief Reef. Since then, China has worked to make its control over the islands permanent. In 1992, it adopted its law on the territorial sea and contiguous zone to “justify” possession of the Spratly Islands. The territorial sea law stated that Chinese military ships and aircraft would exercise the right of hot pursuit as part of law enforcement. This was because China’s maritime law enforcement authority at the time had been divided into five agencies according to their functions, and most of the ships they possessed were under 500 tons, too small to pursue ships in open sea, meaning actual law enforcement had to be dependent on the navy. The maritime law enforcement bodies expanded in size and armament capabilities in the 2010s, reorganized and integrated into the China Coast Guard in 2013 and built a patrol ship with a displacement of more than 10,000 tons and with a 76-millimeter gun — overly equipped for law enforcement — to develop into an agency that overwhelms similar agencies in neighboring countries both in quality and quantity. In July 2018, the coast guard was incorporated into the military police under the command of the Central Military Commission, and enactment of the latest coast guard law for the agency to rely on made it an organization independently tasked with maritime law enforcement and protection of China’s maritime interests in terms of ability and authority. Looking at the China coast guard law together with the territorial sea law, we can see that Beijing designed domestic laws in order to justify the coast guard’s activities as a means to expand its strategic boundaries.

 

Ambiguity of the coast guard law Until now, it was standard practice that a maritime law enforcement agency would be tasked with maintaining maritime order in peacetime and a military organization would take over to respond to high-intensity situations and wars. But the China coast guard law has made the boundary between the two ambiguous. Articles of the law indicate that the Chinese government believes protection of interests including sovereignty and enforcement of law are indivisible. Defense operations are stipulated separately under the national defense law and the armed police law, which means the coast guard will enforce law and protect national sovereignty equivalent to the right of self-defense. This indicates the coast guard is in charge of responding to “gray zone” situations that are extremely close to war, and will engage in military operations when necessary. In the case of Japan, in May 2015 the Cabinet approved a basic policy concerning the defense of remote islands to have the Self-Defense Forces conduct maritime security operations against noninnocent passage of foreign warships in its territorial sea and internal waters. The decision was made because Article 25 of the Japan coast guard law restricts the agency’s activities to nonmilitary actions, and the coast guard cannot respond to violations by warships. Aside from that, there must have been an assumption behind the decision that if a situation escalates, military operations should be conducted exclusively by warships. Japan strictly limits conditions for invoking the right of self-defense to cases of armed attack against the country in an organized and planned manner. This creates a sizeable gap between law enforcement activities and defense operations, and although the government considered setting territorial security missions equivalent to the right of self-defense to fill the gap, it failed to come to a conclusion. Instead, the government included in the basic policy measures to minimize breaks in activities by speeding up the reporting and issuing of orders. However, it is clear that the policy will be insufficient to respond to actions by the China Coast Guard, and there is a high possibility that the China Coast Guard will complicate Japan’s maintenance of maritime order in gray zone situations. The procedure for the China Coast Guard to move on to defense operations is not clear. In the case of the U.S. Coast Guard, which is normally tasked with law enforcement activities, the law stipulates that a direction by Congress or the president is required for the agency to serve as part of the navy to defend against foreign threats. But as for the China Coast Guard, there could be a case in which it is engaging in military operations before we know it.

 

Use of force The use of force stipulated in the China coast guard law may also cause confusion. The law stipulates that the China Coast Guard is authorized to “take all necessary measures, including weapons,” when national sovereignty, sovereign rights and jurisdictional rights are being illegally infringed by foreign organizations or individuals at sea. Such a stipulation undoubtedly gives unlimited authority to China Coast Guard personnel, similar to the Self-Defense Forces law giving an SDF unit engaging in defense operations the authority to use force. In a report on the work of the standing committee of the 13th National People’s Congress released in March, it is stated that the coast guard law was formulated “in order to implement Xi Jinping’s thinking on strengthening the military, and respond to the needs of national defense and military development in the new era.” We can see from the report that China intends to build up the coast guard’s arms to meet the requirements for use of force, and this will inevitably complicate Japan’s response to gray zone situations, especially in regards to making judgments on the use of weapons. So how should Japan respond to the new law and the China Coast Guard? It is possible to assign the Maritime Self-Defense Force to a territorial defense mission. But as the MSDF currently lacks vessels appropriate for such a mission, a large heavy-armed destroyer will have to be used from the initial stage, leading to the risk of unintentionally escalating the situation. Moreover, under the current strategic environment in which China has an advantage over Japan in terms of the balance of sea power and China is expected to overwhelm the United States in the Pacific, Japan should above all else prioritize avoiding escalation. Another idea is to analyze situations that can be assumed under the China coast guard law and have the Japan Coast Guard respond to them through law enforcement activities, while observing the limit permitted under the current law. But as the situation intensifies, there are concerns that the Japan Coast Guard could be forced to operate beyond law enforcement to take military actions. If the China Coast Guard develops to become China’s second navy, it will certainly be impossible for the Japan Coast Guard to respond only through law enforcement activities. And if such a situation occurs when the Japan Coast Guard is conducting law enforcement activities, it will be difficult for the government to designate the case as an armed attack situation regardless of how the situation develops, possibly leading to a delay in requesting for action against an armed attack under Article 5 of the Japan-U.S. security treaty. Therefore, in order to resolve the essential problem brought about by the China coast guard law, Japan must in any case fill the gap between law enforcement activities and defense operations.

 

Multilayered measures First of all, Japan should work to narrow the gap by reviewing the conditions for exercising the right of self-defense in line with the 1986 decision by the International Court of Justice concerning military and paramilitary activities in and against Nicaragua, which held that a state can use force in self-defense when it has been a victim of “most grave forms of the use of force (i.e. those that constitute an armed attack).” Next, it is necessary to give the Japan Coast Guard, which has functioned purely as a law enforcement agency for more than 70 years, a mission to protect national sovereignty — equivalent to the right of self-defense — so it can adapt itself to the newly emerged paradigm of maintaining maritime order. In times of national crisis, it is natural for a nation to comprehensively utilize all the national functions and capabilities it owns, and the coast guard is not an exception. The MSDF should engage in territorial defense in normal times using small, light-armed patrol vessels that will be newly introduced, so that it can back up the Japan Coast Guard together with destroyer units. Moreover, in order to reduce uncertainties in information gathering in gray zones, it is necessary to construct a continuous wide-area surveillance system using surveillance satellites and unmanned aircraft. The China Coast Guard is expected to serve as the main constituent of China’s future attempts to change the status quo. But if Japan can implement such multilayered measures, it will be able to not only ensure maritime order but also respond proactively to contingencies.

 

Disclaimer: The views expressed in this API Geoeconomic Briefing do not necessarily reflect those of the API, the API Institute of Geoeconomic Studies or any other organizations to which the author belongs.
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