by Cristine Detera and Shara Divinagracia

6 April 2021 – On January 22, the Standing Committee of China’s National People’s Congress passed a law that, for the first time, specifically defines the provisions under which the Chinese coast guard would be allowed to use weapons on foreign-registered vessels. On February 1, the law went into effect, causing concern in the international community. In the light of this recent development, the Philippine Association for Chinese Studies (PACS) held its first webinar for the year 2021, entitled “Should the Philippines Worry About China’s New Coast Guard Law?” which addressed the potential risks the new law may cause.

Dr. Melissa Loja, National Coastal Watch Council’s Consultant for International Law and Maritime Security, discussed the Chinese Coast Guard (CCG) Law from the perspective of international law and comparative law, as well as the existence of transnational and regional standards by examining the coast guard laws of the United States, Vietnam, Japan, and the Philippines. According to the 15 specific precedents of customary norms declared by the International Tribunal for the Law of the Sea (ITLOS), there is no uniformity and compatibility in terms of national norms. Regardless of whether the norms adhere to international standards, they at the very least require self-defense to justify the use of lethal force.

Furthermore, Dr. Loja outlined the five clauses in the CCG Law that could cause concern in the Philippines: 1) the authority to use lethal or non-lethal force in the absence of a threat to the coast guard, even if it means enforcing a law or preventing flight concerning the offending vessel, comparable to Vietnam’s norms; 2) the extra-maritime zone jurisdiction, which allows China to impose an environmental law; 3) the use of airborne weapons by both the US and China, which may result in indiscriminate injury; 4) use of force against a claimant state engaged in artificial structure construction without regard to such qualifications, such as when it is involved in building in occupied areas/rocks; 5)and the use of lethal force to enforce plain fisheries and other economic legislation, in contrast to the United States, where the use of force in fisheries enforcement is strictly prohibited by statute. She also emphasized the following principles: One, use of force is permissible in maritime law enforcement. Two, use of force, whether lethal or non-lethal, is permissible under very stringent conditions, foremost of which is the existence of a legal enforcement authority. Third, use of lethal force is permissible only in defense of self or others. Dr. Loja, on the other hand, sees the adoption of a written coast guard law as a positive development because it conforms to a fundamental norm that the jurisdiction of its law enforcers is defined in a legal instrument and strictly confined by it.

Dr. Yan Yan, Director of the Research Center of Oceans Law and Policy at the National Institute for South China Sea Studies, was the first to speak from the panel of reactors. She discussed other Chinese laws that govern and detail law enforcement operations at sea and the use of force in various circumstances. Dr. Yan also emphasized the positive implications of the new CCG Law, which clarifies its functions and obligations in areas under Chinese jurisdiction. This also provides a legal basis for it to carry out its duties, which China has been criticized for lacking for years, as well as clarifying its identity as a civilian law enforcement agency. Moreover, she addressed the critiques of the CCG Law regarding the use of force, emphasizing the significance of chapter 9 that is about “supervision, legal responsibility and accountability”, and chapter 10 that govern and establish legal mechanisms on maritime cooperation between the Chinese coast guard and foreign maritime law enforcement agencies.

Dr. Theresa C. Cariño, the Founding President of PACS and a Senior Research Consultant in Amity Foundation, addressed concerns that the CCG Law could be used as a legal cover to prevent Filipino fishermen from fishing in the disputed area or to prevent Philippine-sanctioned foreign firms from exploring oil and gas in the West Philippine Sea. The authorization to use force in some Asian countries represents the expansion and militarization of Asia’s coast guards, as well as the risk that comes with it. Dr. Cariño concluded by expressing hope that an agreement in the Code of Conduct between ASEAN members and China will be finalized through a multilayer approach that can help achieve cooperation and peaceful resolution of conflicts in the South China Sea.

The PACS first webinar this year was held via Zoom. There were 59 participants from different government agencies and other institutions from the Philippines and China.