China’s new Coast Guard Act has put the ‘cat among the pigeons’ and the South China Sea claimants Brunei, Malaysia, Philippines, Vietnam and Taiwan are visibly worried. The Act has also attracted international attention; for some, it is an act of war and for others, it violates the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
The Act came into effect last month on 01 February. In its administrative content, the Act is the culmination of at least two reorganizations of the Chinese Coast Guard (CCG) that began in 2013 involving administrative and operational control of five closely associated national maritime law enforcement agencies, also referred to as the Five Dragons , that were brought under one umbrella. In 2018, CCG became part of the People’s Armed Police Force.
Under the new Act, it is feared, the CCG would conduct operations just like the PLA Navy and would be directly controlled by the Chinese Communist Party Central Committee. The CCG is empowered with powerful ‘security and control measures’ and has the rights to take necessary actions to “restrain foreign military vessels and foreign vessels used for non-commercial purposes in waters under China’s jurisdiction from violating the laws or regulations of China” which is potentially in contravention to the 1982 UNCLOS.
The Act has also attracted international attention; for some, it is an act of war and for others, it violates the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Under Article 20, the CCG may demolish “buildings, structures, and various fixed or floating devices” built by foreigners “in the sea areas and islands under our jurisdiction”, and Article 47 authorizes the agency to “directly use weapons if there is no time for warning or if there is a risk of serious harm after giving a warning.”
It is the latter that prompted Japan to label the Act as “blatantly threatening” and “aimed directly at the Senkakus” raisingspeculation that the Japanese Coast Guard, which hitherto could “fire weapons directly at foreign vessels in cases of self-defence and emergency escape” may now “ fire on foreign official vessels under laws by regarding vessels aiming to land on the Senkaku Islands as committing violent crimes”.
However, it is fair to say that some of the provisions contained in the Chinese Coast Guard Act are not extraordinary. Navies, Coast Guards and law enforcement agencies of many countries are administratively controlled by the ministries of national defence and routinely operate with the national navies albeit pursue different rules of engagements. Many maritime law enforcement agencies are also known to intercept and even sink foreign fishing vessels especially when these engage in IUU fishing. These naturally attract diplomatic protests from the affected countries including China.
Be that as it may, the ASEAN and China signed the Code for Unplanned Encounters at Sea (CUES) in the South China Sea in 2016 under which both sides are committed to “maintaining regional peace and stability, maximum safety at sea, promoting good neighbourliness and reducing risks during mutual unplanned encounters in air and at sea, and strengthening cooperation among navies”. This agreement is for the navies and draws upon the CUES (voluntary and non-binding) adopted by the Western Pacific Naval Symposium (WPNS).
The new Chinese Coast Guard Act may have created an opportunity for ASEAN and China to conceptualize CUES that is tailored to the mandate of the Coast Guards i.e. law enforcement. The issue can also be on the agenda of the Heads of Asian Coast Guard Agency Meeting (HACGAM), a grouping of 22 Member States and multilateral organisations, which aims at cooperative and proactive efforts to address maritime issues confronting the region.
Among the ASEAN member countries, Vietnam is well placed to lead the initiative for at least three reasons. First, it is a claimant and some of the features in the South China Sea are under its control; second, it has a larger Coast Guard when compared to the capabilities of the other ASEAN claimants; and third, the Vietnamese Communist Party maintains close contacts with their counterparts in China and this could be a useful channel to facilitate a dialogue.
However, it remains to be seen if Beijing would allow debate and discussion on the Coast Guard Act particularly when it also involves contested areas such as the South China Sea. For that deft diplomacy by Vietnam could be a good idea.
Feature Image: www.japantimes.co.jp
