“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 6, 2021:
API Geoeconomic Briefing
April 6, 2021
China’s ambiguous coast guard law a challenge for Japan
Associate Professor of International Law, Meiji Gakuin University,
When a new Chinese coast guard law came into effect on Feb. 1, it became clear exactly what the China Coast Guard is, what it is allowed to do and what kind of activities it will conduct in the future.
As a result, we can see that Japan should be prepared to respond appropriately and effectively to China Coast Guard actions in the sea around the Senkaku Islands based on legal norms among the international community.
China Coast Guard ships are normalizing their acts of intrusion into Japan’s territorial waters near the Senkaku Islands in Okinawa Prefecture or navigating in the contiguous zone. Since last year, they have approached Japanese fishing boats several times. There is a fear that China Coast Guard personnel may even land on the islets in the future.
So how should Japan respond to such situations?
I would first like to clarify what kind of an organization the China Coast Guard is, by dissecting the law which recently took effect.
Under the general theory of administrative law, the China coast guard law has the nature of both an organization law and an operations law, as it stipulates what kind of organization the country’s coast guard is and what it can do.
The crucial part of this legislation is Article 3, which sets the law’s geographical scope of application to “the waters under the jurisdiction of China,” although it does not provide a definition of what exactly constitutes China’s jurisdictional waters.
Therefore, it is not clear in the law how much area the jurisdictional waters cover geographically — whether they mean internal waters, territorial sea, an exclusive economic zone (EZZ) and continental shelf, all ways in which coastal states are given sovereignty and jurisdiction under the United Nations Convention on the Law of the Sea (UNCLOS), or whether they go beyond these maritime zones to include further waters which China claims.
The draft of the law defined China’s jurisdictional waters in Article 74(2) as internal waters, territorial waters, contiguous zone, EEZ, continental shelf and “other waters under the jurisdiction of the People’s Republic of China.”
This definition shows China is making claims under its own interpretation of maritime zones beyond what the UNCLOS states.
China says the UNCLOS does not regulate every factor of international law regarding the ocean, claiming that its scope is limited.
When the Philippines brought its dispute with China over territories in the South China Sea to arbitration, China claimed that its “historical rights” over the maritime areas within its claimed “nine-dash line” were established before the ratification of the UNCLOS, insisting that the UNCLOS cannot deny rights established prior to its adoption.
The arbitration award in favor of the Philippines, handed down in July 2016, concluded that China’s historical rights claims had no legal effect.
Although China’s claims have not been justified by the UNCLOS, China still maintains its position.
Law enforcement and military activities
The China Coast Guard’s law enforcement activities are stipulated in detail in chapters 4 and 5 of the new law on administrative law enforcement and maritime crime investigation.
What is included in the chapters appears to be the fruits of China’s research on organization laws and operations laws of maritime law enforcement agencies in other countries.
Article 21 of the law states that the China Coast Guard has the right to exercise law enforcement measures to stop foreign military ships and foreign government ships that violate China’s laws and regulations in the waters under its jurisdiction.
It is not clear from the text of the law whether or not such measures will stay within the scope of “rights of protection” stated in Article 25 of the UNCLOS allowing countries to “take the necessary steps in its territorial sea to prevent passage which is not innocent.”
However, Article 21 of the China coast guard law is applied to the waters under China’s jurisdiction. Exercising law enforcement measures against foreign military ships and foreign government ships outside its territorial waters is inconsistent with international law, which grants such ships immunity from the enforcement jurisdiction of coastal states.
Article 22 of the China coast guard law stipulates the exercise of forcible measures including the use of weapons.
Under international law, the use of weapons in the course of maritime law enforcement activities is permitted as long as it is strictly necessary and reasonable and is conducted to the extent required for securing the effectiveness of such activities.
The use of weapons stated in Article 22 is basically compatible with rules on the use of weapons under international law.
But there are problems with Article 22, as it states the China Coast Guard has the right to take all necessary measures, including the use of weapons, when national sovereignty is being infringed on by foreign organizations and individuals at sea.
Depending on the situation, the measures could fall within the scope of not the use of weapons but the use of armed force in international conflicts.
The use of armed force is regulated by the United Nations Charter and international law of armed conflict.
We should be very careful when reading the China coast guard law, since it equally treats in one provision two issues to exercise authority that are regarded as completely different under international law.
The law mentions “national sovereignty” not only in Article 22 but also in other articles such as Article 1 and 12, and also mentions “national security” and “national defense” in Article 4, 5 and 12(2).
Article 83 of the law states that the China Coast Guard performs defense operations and other tasks in accordance with the National Defense Law of the People’s Republic of China, the People’s Armed Police Law of the People’s Republic of China and other relevant laws, military regulations and orders of the Central Military Commission.
The China coast guard law clearly stipulates that China’s coast guard has the authority to respond to situations in which the nation’s external sovereignty is infringed. In other words, it says the China Coast Guard has the right to conduct military activities for the sake of national security.
By enacting the China coast guard law, Beijing made it clear that the China Coast Guard is a maritime law enforcement agency and also an agency that carries out national security duties.
How Japan should respond
Until now, Japan has responded to cases in the waters around the Senkaku Islands through maritime law enforcement activities by the Japan Coast Guard.
Should Japan continue to respond in this way, or deal with cases through military operations in line with changes in the situation?
Law enforcement activities in the sea are basically aimed at preventing and investigating crimes, arresting criminal suspects and putting the cases under judicial proceedings. They are activities conducted to protect and maintain maritime order.
While such activities have the national security aspect of securing sovereignty of the land territory and eliminating infringement of territorial integrity, such effects are only secondary.
The main objective of maritime law enforcement activities is not the protection of territory.
Following the enactment of the China coast guard law, there have been moves in Japan to enact new legislation, with phrases like “securing sovereignty” and “territorial integrity” often used as keywords.
Even if a new law is designed with such aims, once it takes effect, it will be applied and enforced as maritime law enforcement activities.
But what is important is whether maritime measures to protect sovereignty or territorial integrity can really be evaluated as maritime law enforcement activities from the standpoint of international law.
Even if such measures are taken by an agency authorized to conduct maritime law enforcement activities under domestic laws, and even if there is domestic legislation to let such an agency respond to cases that require actions to protect sovereignty or territorial integrity, it doesn’t mean the operations will automatically be regarded as maritime law enforcement activities under international law.
This applies to any country, including Japan and China.
In preparing new legislation in Japan, it is necessary to closely examine norms and also scrutinize how the application and enforcement of domestic laws in the sea will be evaluated under international law, as well as assessing whether situations that should be dealt with can be effectively resolved by applying and enforcing domestic laws.
And such examinations should start from the point of determining whether Japan should cope with the cases as violations of its own laws occurring under its jurisdiction or as issues arising between countries.
There would be so-called gray zone situations in which it is difficult to judge whether actions should be taken as maritime law enforcement activities or as national security operations, but there are no gray zone activities. It should be either one or the other.
It is necessary to seek the most appropriate and effective ways to cope with each of the cases based on correct recognition of the situation.
Preparing for ambiguity
The China coast guard law clarified what kind of organization the China Coast Guard is and what authority it has. It is an organization that functions both as a maritime law enforcement agency and a military agency.
And it is not always possible to tell from the outside which mission the China Coast Guard is conducting.
Therefore, the China Coast Guard makes it difficult for those facing it in the sea to make judgements, delays their response to what is happening and tries to take advantage of the situation by being ambiguous.
It is necessary for Japan to read into what China is trying to do by utilizing this law, identify all the possible situations that may occur in the vicinity of the Senkaku Islands and make preparations so that it can cope with each case appropriately and effectively.
The Japanese government has repeatedly said it will handle situations in the waters around the Senkaku Islands “calmly and resolutely.” Now it is expected to substantiate that.
Other countries facing threats from the China Coast Guard are carefully watching what steps Japan will take.
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.