Over the coming days, MAP will publish short expert commentaries assessing the Maritime Police Law passed by the People’s Republic of China’s (PRC) National People’s Congress Standing Committee on January 22, 2021. The law, which went into effect on February 1, 2021, authorizes the China Coast Guard to take “necessary warning and control measures” against foreign military or government ships in waters that China views as under its jurisdiction. NBR spoke to experts from across Asia to assess the new law’s impact on territorial and maritime boundary disputes in the South and East China Seas.
Ja Ian Chong, an Associate Professor with the Department of Political Science of the National University of Singapore, provides this statement:
Responses to the PRC’s new Maritime Police Law are largely muted, including from Singapore, which was previously an understandably vocal proponent of rule of law internationally given its small size and relatively limited capabilities. It is possible that assertive PRC behavior over maritime disputes, economic interests, and Beijing’s offer of Covid-19 vaccines have discouraged more visible reactions. A lesson Singapore may have learned from its friction with Beijing over the rule of law between 2012 and 2017—culminating in the detention of Singaporean armored vehicles in a Chinese port in late 2016—is that silence pays.
This quiescence could also have to do with timing. The law’s introduction, passage, and operationalization dovetailed with the coup in Myanmar, which captured headlines in Southeast Asia and around the world. Governments in the region and beyond are already struggling to cope with the Covid-19 pandemic, and they have precious spare capacity to focus on what looks on paper like a domestic legal change. Even the United States seems too engrossed with its substantial domestic health and political woes to pay sustained attention. This absence of reactions could have prompted Singapore to hold its peace.
Nonetheless, the new law may well end up further complicating regional differences over maritime claims in disputed areas and potentially prove escalatory. Efforts to enforce what is effectively domestic law in disputed waters essentially imply that those areas are under PRC jurisdiction, something that other claimants and interested parties will find difficult to accept. PRC law enforcement in disputed waters could push other claimants up against domestic nationalist sentiment, forcing them to escalate a dispute and invite an even more heavy-handed PRC response.
The Maritime Police Law also alters the baseline for ongoing discussions about a code of conduct between Beijing and the Association of Southeast Asian Nations (ASEAN). Since the code of conduct is supposed to establish mutually acceptable behaviors for actors in disputed areas of the South China Sea, other parties need to accept PRC exceptionalism, demand similar treatment, or ask the PRC to rescind the law. If none of these options are mutually acceptable, then Beijing bears responsibility for an impasse or even the failure of negotiations. Even if other actors, including Singapore, do not openly state their misgivings, this silent resentment may strain the PRC’s future ties with ASEAN and other actors.
Ja Ian Chong is an Associate Professor with the Department of Political Science of the National University of Singapore. He received his PhD from Princeton University and previously taught at the Hong Kong University of Science and Technology. All comments are his own.
Seokwoo Lee, a Professor at the Inha University Law School in Incheon, South Korea, provides this statement:
With China’s passage of the new Maritime Police Law, conflicts over sovereign rights and exercise of jurisdiction by the relevant coastal states could escalate. While the law seems to predominantly target the United States, Japan, and the coastal states of the South China Sea, the Yellow Sea adjacent to the Korean Peninsula and the waters surrounding Ieodo (also known as Socotra Rock) in the northern East China Sea will not be free from law enforcement by China. In the event that the law’s enactment raises tensions in regional waters, maritime activities around the provisional measures zone in the Yellow Sea will likely become a sensitive issue involving a degree of law enforcement by relevant states. If the manifestation of China’s law enforcement becomes conspicuous, the primary means of response from South Korea would likely be nonmilitary; however, quasi-military action is also possible.
In particular, if the demand for law enforcement related to China’s increased maritime power emerges, South Korea’s neighboring seas may suddenly turn into seas of conflict. The conflict could be over marine scientific research, military surveys, exploration of resources, law enforcement, or installation of facilities. The assessment of each type of conflict under international law can be divided into the activities allowed in overlapping jurisdiction (i.e., provisional measure zones) and the required responses as part of exercising unilateral sovereign rights.
China’s Maritime Police Law clearly will expand conflicts involving sensitive issues regarding the operation of maritime law enforcement and activities in Northeast Asia. Nonetheless, the enactment of the law by itself is not a violation of international law. Instead, it should be regarded as the application of a sovereign right that requires other countries to exercise restraint
due to the provisional measure. This means that law enforcement by the China Coast Guard should carefully consider international judicial decisions, state practices, and the geopolitical climate of the international community. In the meantime, the Korea Coast Guard must continue following China’s state practices regarding maritime law enforcement. Meanwhile, violations of United Nations Convention on the Law of the Sea (UNCLOS) Articles 74 (3) and 83 (3), as well as other relevant international norms, should be raised when using law enforcement in undefined waters. Therefore, it is important to follow the implementation of norms on maritime law enforcement in the international community to interpret future laws by China.
While South Korea’s Coast Guard Act is in full operation, more needs to be done to establish standards for the use of weapons by the coast guard. This will be utilized as a basis for concrete law enforcement by field agents as well as a precondition for providing education on appropriate responses. In an environment where states struggle for hegemony and where conflict over maritime activities in regional waters is increasing, it is evident that China’s enactment of the Maritime Police Law will heighten international scrutiny.
Seokwoo Lee is a Professor at the Inha University Law School in Incheon, South Korea.
Admiral (ret.) Takashi Saito, Chairman of the Maritime Security Study Group at the Nakasone Peace Research Institute, provides this statement:
On January 22, at the Standing Committee of the National People’s Congress, China passed and enacted the Maritime Police Law, which defines the duties and authority of the China Coast Guard and went into effect on February 1. However, some parts of this law are incompatible with international law and practice.
Most of the media coverage of the enactment of the Maritime Police Law has focused on Article 22, which states that “all necessary measures, including weapons,” can be taken against foreign organizations or individuals that infringe on China’s sovereignty or jurisdiction. This provision has raised concerns that the law could lead to armed conflict between China and Japan. In addition, there are suspicions that many of the law’s provisions are incompatible with international law and practice.
The Maritime Security Study Group of the Nakasone Peace Institute (NPI) believes that Article 21 of the Law is one such provision. Article 21 states the following:
This provision deletes the definition of “waters under China’s jurisdiction” found in Article 74 (2) of the previously announced draft, making it ambiguous, as well as imposing restrictions on the navigation of warships and government ships as China’s unilateral authority in “waters under its jurisdiction.” This is contrary to the principle of sovereign immunity for warships and government ships and is clearly contrary to international law. The article imposes restrictions on the navigation of those ships outside territorial waters through domestic law and restricts the principle of freedom of navigation in international waters.
For these reasons, the Maritime Security Study Group believes that the enactment of the Maritime Police Law tramples on international maritime law and order and the principle of freedom of the seas that have been built up through historical efforts. China should not be allowed to legitimize the actions of its coast guard in the East and South China Seas. It should also not be allowed to make Chinese domination of the seas a foregone conclusion.
Admiral (ret.) Takashi Saito is Chairman of the Maritime Security Study Group at the Nakasone Peace Research Institute. He is the former chief of staff of the Joint Staff of the Japan Self-Defense Forces. This is the view of the Maritime Security Study Group and does not necessarily represent the view of the NPI.