ASEAN members should make it clear that any use of force by China in their waters would be considered an act of war, experts say. 

On January 22, China passed a law that breaks precedent by explicitly allowing its coast guard to fire on foreign vessels.

According to draft of the Coast Guard Law published earlier, the coast guard would be allowed to use "all necessary means" to stop or prevent threats from foreign vessels. It also allows coast guard forces to demolish other countries' structures and to board and inspect foreign vessels on reefs and in waters claimed by China.

A China Coast Guard vessel at the disputed Scarborough Shoal in 2017.
Photo by Reuters.

"Any use of force by China's Coast Guard is not a mere law enforcement action, it is an actual use of force by the state, which can be considered as an act of aggression, or use of force contrary to the United Nations Charter, or tantamount to war, if it is employed in the waters of other countries that China claims as its own," Professor Jay Batongbacal, Director of the Institute for Maritime Affairs and Law of the Sea, University of the Philippines, told VnExpress International.

China's Coast Guard is not a civilian agency; it falls directly under the Central Military Commission, and therefore is or should be considered a military agency, he explained.

Despite the fact that coast guards all over the world do have law enforcement powers that can include the use of force, the problem is China's Coast Guard has not been operating only in its own waters but has also been encroaching the waters of other countries. That is what makes it different from others, Batongbacal said.

Therefore, the principal challenge now is that China has delegated the authority to decide whether or not to use force to operating units at sea. This means that the probability of an incident involving the use of force is higher than before.

Batongbacal stressed that this is a common challenge facing all Southeast Asian countries around the South China Sea whose waters are claimed by China. The South China Sea is known as the East Sea in Vietnam.

Threat to civilians

For the civilians of related countries in the region, there is now an actual threat that Chinese vessels can fire upon them, even if they are operating within their own country's waters, said Batongbacal.

Even military vessels of such countries may actually be fired upon while they're carrying out their normal functions in their own jurisdiction.

Consequently, the private sector is more likely to be wary and start to keep away from areas they know Chinese vessels are operating. If that happens, China will have attained another victory in its slow and incremental campaign of gaining control over the South China Sea.

Civilian activity will be forced to comply with Chinese regulations in order to avoid hostile action, and government vessels will be the only ones left operating in the areas.

Eventually, they will also be surrounded by Chinese vessels. It would be a very bad situation for them. The islands that they occupy will also be surrounded by Chinese vessels that may be fired upon. It's like China winning a war without firing a shot, he said.

A warning for ASEAN? 

Gregory Poling with the Center for Strategic and International Studies (CSIS), the U.S., said that with the new law, Vietnam will face the same challenges it already does.

Chinese law enforcement and other vessels are willing to create risks of collision and otherwise harass Vietnamese civilian vessels in order to prevent Vietnam’s lawful activities in its own Exclusive Economic Zone (EEZ). China Coast Guard (CCG) vessels, larger and more numerous, present a threat that Hanoi can’t overcome with direct competition, Poling said.

Vice Admiral Yoji Koda, former Commander-in-Chief of the Japan Maritime Self-Defense Force, said that for Vietnam, as well as Japan, the most dangerous situation is not China Coast Guard’s use of weapons under the law. Rather, China's use of the law as a key element of its "lawfare" to expand its territories "peacefully" is the real problem.

Koda took an example: When there is a eye-to-eye confrontation between Vietnam and China’s coast guard ships, if Vietnam ship, even reluctantly, withdraws from the area, China is able to send troops to "peacefully" seize long-disputed reef without using weapons or military forces. Thus, China establishes its national objectives.

"What China wants to do is that China makes domestic law as a mean to solve international dispute/confrontation favorably to China, thus to establish China’s national objective."

Collin Koh, a research fellow at Singapore's S. Rajaratnam School of International Studies, made a similar argument.

Koh said the law constitutes an implied warning to ASEAN parties in the South China Sea against seeking to challenge China’s actions or undertaking measures Beijing would deem counter to its national interests.

Ironically, then, the onus is placed squarely on the ASEAN parties in the South China Sea to avoid provoking China, even if the actions are legitimate measures carried out in accordance with rights and duties enshrined in the United Nations Convention on the Law of the Sea (UNCLOS). For example, the ASEAN parties would, in effect, be deprived of their right to explore and exploit energy resources as well enforce fisheries control in their respective EEZs.

This would be particularly true of ASEAN members keen to avoid escalating tensions with China. The new law may compel them to think twice about undertaking legitimate actions. While avoiding any potential untoward incidents with China, such self-deterrence would play into Beijing’s hands.

China typically exploits the desire of other parties, especially smaller and weaker countries in Southeast Asia that are economically beholden to it, Koh said.

"This is yet another type of lawfare that Beijing plays in the disputed waters."

He stressed that the other downside of the calculation is that even if the concerned ASEAN party chooses to go ahead and disregard the new Chinese coast guard law, there’s always a risk that provokes a greater reaction from China that may spiral out of control.

On the whole, the law just doesn’t bode well for ASEAN countries because it’s potentially destabilizing, in no small part due to the ambiguous language used in the provisions; e.g. "waters under national jurisdiction" that isn’t properly defined and could only be left to China as the sole, final arbiter on what it means, depending on its own interests in a particular situation.

Rogue practices

While Chinese foreign ministry spokeswoman Hua Chunying has said the law was in line with international practices, Batongbacal emphasized the notion of what is normal. A normal situation is when a state limits itself to its own jurisdiction. The problem is China does not do that. It imposes itself on other countries' jurisdictions, he noted.

According to Batongbacal, the ability to use force in law enforcement is part of international law. There are some prohibitions in the UNCLOS and some rulings of the International Tribunal on the Law of the Sea (ITLOS) that come into play. It's only through practice that the limits to the use of force in law enforcement have been developed.

"But China does not mention any of that, meaning they're doing so besides the standards," he said.

China's past actions have not followed the standards and practices of other nations. Therefore, countries cannot have any confidence that China will use or implement the law in the same way that other countries do in their own waters.

Poling agreed. He said China's new law by itself isn't out of line with international standards but its vague definition of Chinese waters and the trend of increasingly aggressive behavior by the Chinese Coast Guard makes it likely that the law will be used as an excuse for further coercion off the shores of Vietnam, Indonesia, Malaysia, and the Philippines.

"For that reason, the region is understandably nervous about how the new law will be implemented," he said.

In a January 26 webinar titled Asia Forecast 2021, Bonnie Glaser, Senior Adviser for Asia and Director, China Power Project, CSIS, said that when countries look at China's past practices, how it uses law enforcement vessels to control activities within the nine-dash line where it claims it has jurisdiction and historical rights, they can expect that there will be a continuation or even an uptick in some of those coercive activities. Furthermore, China continues to turn out really large law enforcement vessels in greater numbers than any other claimant in the region.

She said China's attempt to control activities within other countries, in exclusive economic zones that intersect with China's infamous nine-dash line, is definitely growing.

Possible reactions

Poling said that there were already complaints by neighbors about China's law, including a formal diplomatic protest from the Philippines on January 27.

Countries are also going to hear anxiety from interested parties like the U.S., but the level of criticism will depend on how China implements the law.

"The only options are to combine military deterrence with a diplomatic strategy to rally international opinion in the hopes of moving China toward compromise," he said.

Japan's Vice Admiral Koda said countries like Japan, the U.S. and Australia that support free use of sea as seafaring nations would, most likely, not support China Coast Guard law.

They will express some sort of disagreement, uneasiness and concerns to the law.

"In a physical incident, especially incident caused by use of weapons by CCG law, firm condemnation from these nations will be expected. If the incident is a casualty-associated one, some nation may send its CG units the area."

Koh said that where ASEAN countries are concerned, there are several possible reasons for the muted reaction so far. They need time to look at the new Chinese law and consider its potential legal, political, and operational implications. The current atmosphere in the South China Sea remains somewhat stable, and especially after recent developments wherein China has reached out to ASEAN countries to promote economic and pandemic cooperation, some regional governments prefer to not rock the boat at this juncture.

In addition, he said, ASEAN countries are more focused on pandemic containment and recovery and do not want to let this new law and reactions thereof be a distraction.

There might not be an open public reaction, but this doesn’t preclude the possibility that at least some ASEAN governments might have directed their concerns to Beijing via diplomatic channels. Countries may expect this issue to emerge in the discussions on the Code of Conduct (COC) once the negotiations restart, Koh said.

People may also expect navies and coastguards to strengthen inter-agency coordination to respond in a coherent fashion in the future against China’s actions in the South China Sea. In fact, there is already some progress on this front in some ASEAN countries. There is also the possibility that this new Chinese law may in fact compel concerned ASEAN countries to ramp up intramural coordination and info-sharing between their coastguards, and expand cooperation with extra-regional parties in this regard.

If Beijing has been seeking to exclude extra-regional presence in the South China Sea, this law may achieve the opposite effect, Koh said.

Batongbacal surmised that related countries in the region are trying to get a copy of the actual legislation before making a formal communication on the issue. There's a vague description of the law on the website of the National People's Congress of China. The report on its content came from The Global Times, an official publication.

He hoped that other countries would come up with a consistent and unified position on this issue. That's the only way to get China to withdraw the law or keep the country from implementing it in the jurisdictions of other countries. Ideally, all claimants should have the same perspective and attitude, that the imposition of the Chinese law on their waters is an act of aggression.

Batongbacal said that that key powers should make a clear statement of policy about how they would react if China does indeed attempt to use force against vessels in waters China claims but do not have legal jurisdiction over. They have to make it very clear that this will not be accepted.

He said countries in the region can object to China's law implementation in their own jurisdictions. They should also make it clear that any coast guard legislation is only valid in a country’s sovereign waters, not outside it.

Any attempt by China to apply its laws in the waters of other countries like Vietnam, the Philippines, Malaysia or Indonesia "should be considered as an act of war," he said.