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THREAD: The 25th Standing Committee session of PRC's 13th National People's Congress passed the Coast Guard Law, which has been under deliberation and opened to "public consultation" for the past few months since last year. Some key takes below. https://www.reuters.com/article/us-china-coastguard-law-idUSKBN29R1ER
1. There has been much reported in the press focusing on the authorization of CCG to open fire at foreign vessels. The first that came to my mind is that beyond how it could impact regional maritime flashpoints e.g. SCS disputes, it's a common practice worldwide anyway. 1/
2. Authorizing MLE agencies to open fire in the course of their law enforcement and sovereignty assertion duties is nothing new, since coastal states have had domestic laws governing such provisions. In 2018, Vietnam passed its new coast guard law that outlines the same. 2/
3. What's interesting is how Beijing seeks to define the conditions and a "ladder" governing graduated use of firearms. Chapter 6 on use of weapons, outlines 4 conditions for use of force. 3/
4. These conditions are: 1) to bring the other vessel to a halt in the course of boarding, inspection, intercept and pursuit according to law; 2) to expel or tow away the other vessel by force according to law... 4/
3) when faced with obstruction or harm in the course of carrying out mission according to law; 4) when faced with other situations in the course of stopping unlawful activities on-scene. The last point leaves it pretty open to interpretation what "unlawful activities" are. 5/
Under the same chapter, 2 conditions are outlined to authorize the use of hand-held firearms: 1) where evidence indicates the other vessel carries criminal suspects or in illegal possession of weapons, ammunition, materials concerning national secrets, drugs and other items... 6/
... refusing to obey orders to stop; 2) foreign vessels entering waters under national jurisdiction to carry out illegal resource extraction/exploitation, refusing to obey orders to stop or refusing boarding, inspection by other means, and where other measures fail to stop... 7/
... those unlawful activities. The issue here of course is how "waters under national jurisdiction" can be a matter of contention and concern amongst the regional and international community. I'll assume this applies to the entire water body enclosed by PRC's 9DL in SCS. 8/
And following this section on use of hand-held firearms, the same chapter outlines conditions for use of ship- or air-borne weapons besides hand-held ones: 1) when conducting counter-terrorism duty; 2) when handling serious violent incident at sea; and... 9/
3) when vessel or aircraft conducting law enforcement duty faces attack by weapons or other dangerous methods. Point 2 on "serious violent incident" would be open-ended here; does collision by foreign civilian, MLE and naval vessel in close-in maneuvers constitute such? 10/
Clause no. 49 right after the conditions on use of heavier weapons states that CCG personnel may directly use weapons according to law, in the event where there's no time to issue warning or if, upon warning the other party, may cause more serious dangerous outcome. 11/
Clause no. 50 states that CCG personnel should rationally assess the extent of necessity in use of weapons, according to the nature of danger, extent and urgency of the concerned unlawful activity and perpetrator, to avoid or miminize unnecessary casualty or property loss. 12/
Clause no. 50 here was in fact a watered down version from the proposed clause no. 46 in the draft law, which added specifically that when force is applied against another vessel, CCG personnel should avoid shooting below its waterline. 13/
I'm not sure why this additional line was removed, but in so doing, this approved version (clause 50) left it open-ended for CCG personnel to interpret how force should be applied against another vessel, which would open the possibility of outright sinking it if necessary. 14/
My concluding thoughts: while rolling out a coast guard law by PRC adheres to common practice worldwide, and so is the case of authorizing force in the course of duty, ambiguous language that allows varying interpretations bestow more free room for CCG personnel to navigate. 15/
And while this does bestow flexibility upon the CCG, it also opens the risk to potential abuse by on-scene commanders and operators. This risk is operational, but has direct feedback to the strategic-political level... 16/
... since lack of clarity on "waters under national jurisdiction" means the CCG can apply force not only in situations it sees fit based on the general outlines of this law, and within waters Beijing claim as its own, including historical fishing grounds disputed with others. 17/
But it appears to have also left it mostly open for the CCG personnel to decide on when and how to use hand-held and heavier ship- and air-borne weapons, without specifically emphasizing the need for proportionality and necessity beyond just a general mention. 18/
As a background context, the CCG has for years been complaining about how it encounters difficulties at sea not only due to inadequate legislation governing how it could use force, but also how some other claimants in SCS esp. are using navies instead of MLE agencies... 19/
... for sovereignty assertion and fishery protection. The proponents of need for change argue for more robust legislation that can bestow them more flexibility to respond to contingencies at sea, or for the PLA Navy to back them up if they encounter foreign navies. 20/
What we see in recent years has been a gradual shift towards addressing these concerns. For example, in May 2018, CCG conducted its first joint patrol with PLA Navy and local administration units off PRC-occupied Paracel Islands. 21/ https://www.scmp.com/news/china/diplomacy-defence/article/2147154/chinas-navy-and-coastguard-stage-first-joint-patrols
How it works: if the joint patrol encounters a foreign MLE vessel, the CCG steps in. If they encounter a foreign navy vessel, PLA Navy steps in. If they encounter transgressing local fishermen, the local administration units step in. This is how the joint patrol is tiered. 22/
With the newly promulgated Coast Guard Law, CCG not only enjoys greater flexibility on the means by which it could carry out its missions, including sovereignty assertion and fishery protection in the SCS, but continued support from the PLA Navy. 23/
Given that the assets of some of the SE Asian SCS claimant navies are outsized and outgunned by newbuild OPVs inducted into CCG service in recent years, this means that even these grey hulls face no guarantee that Beijing would restrain its white hulls from using force. 24/
Recall that Beijing's narrative has been that it's contributing to stability in the SCS because it employs white hulls, and accuses others of using grey hulls to destabilize the situation. This narrative obviously cuts no ice and wins no sympathy for Beijing. 25/
If anything, Beijing has flipped on its head the notion that white hulls contribute to stability at sea by virtue of projecting a non-militarized impression. Coercive behavior of PRC MLE agencies since 2010 especially shows how white hulls embolden greater assertiveness. 26/
Simply put, Beijing uses the narrative of "white hulls for stability" to advance its goals at the expense of rival SCS claimants which in the first place don't have coastguards other than navies to speak of, or their coastguards just simply are much less capable to match. 27/
Naturally, in defense of their sovereignty and rights, SE Asian claimants without coastguards or with very limited coastguard capabilities would continue to employ their navies to assert those claims. And Beijing obviously found its narrative hitting the brick wall. 28/
As such, the complaints within the CCG community about inadequate legislation and call for support from PLA Navy, leading to recent measures e.g. joint patrol format and this new Coast Guard Law, blows away the facade of Beijing's narrative about contributing to stability. 29/
If anything, this means Beijing rivals in ECS, SCS and Yellow Sea need to scale up their game too - beef up their coastguards and/or navies, improve inter-agency coordination, enact robust maritime law enforcement regulations and rules of engagements. END
