Photo Source: Philippine Star
The Standing Committee of the 13th National People’s Congress last 22 January 2021 adopted the Chinese Coast Guard Law (CGL), which took effect on 01 February 2021. The CGL aims to regulate and legally capacitate the Chinese Coast Guard (CCG) in matters of safeguarding China’s maritime rights, interests, and sovereignty. Because of the CGL, the CCG can execute maritime safety and security within its means. Moreover, it empowers them to sustain maritime security and order. In circumstances where maritime crimes are present, it can exert measures it deems necessary. The domestic law also empowers the CCG to manage the development and utilization of marine resources, conduct marine fishery production operations, and protect the marine ecological environment.
The capacities instituted in the CGL can extensively aid China on its “nine-dash line” claim. Based on China’s verbal text submitted to the United Nations in 2009, it clarified itself to have indisputable sovereignty on the entire nine-dash line while enjoying sovereign jurisdictions and rights over what it considers relevant waters, seabed, and subsoil. Given this, the CGL becomes problematic due to the ruling of the PCA in July 2016. The Award invalidated China’s historical and maritime claims and has deemed it without legal effect and inconsistent with UNCLOS. Trang Pham, a lecturer in International Law and the Law of the Sea at Vietnam National University, explains that the passage of the CGL increases China’s “unlawful claims” over the South China Sea (SCS) and increase the likelihood of “dangerous encounters” between CCG and the maritime patrol forces of the Philippines, Malaysia, Vietnam, Indonesia, and even the United States.
The Philippines protested the CGL as it could potentially destabilize or threaten its national security interests in the WPS. The CGL has been strongly criticized by the international community and widely debated by security experts and scholars. Several provisions in the CGL have become questionable in nature because of its inconsistency to UNCLOS. According to experts, two major concerns on CGL that could potentially destabilize or threaten peace and stability in the region: 1) China’s potential excessive use of force or weapons and 2) its ambiguous jurisdictional maritime area. It could assure maritime security or heighten the ongoing tensions and conflict in the SCS. While China claims to have benign intentions in passing its CGL, its passage intensified the security dilemma between China, the Philippines, and other claimant countries in the contested area.
The CGL is expected to be China’s gray zone tactic to primarily assert its maritime claims and to gain full control of the SCS. Gray zone tactics are defined as an effort to achieve one’s security objective or interest without resorting to the direct use of force. The unique nature of China’s gray zone tactics means that it made a crucial decision to play a huge role in the international arena, where it would not simply accept and embark on the rules implemented by the Western powers. This is evident in China’s use of militarization on the artificial islands they created, an example is the 1995 occupation of Mischief Reef.
The passage of the CGL is beginning to have an impact on the Philippines’ maritime and territorial integrity. The law will affect the political, economic, military, and legal aspects of the country that may be detrimental for the future.
Political
The ambiguity of the CGL led to the Philippines filing a series of diplomatic protests against China which may hinder the relationship between the two countries. The Philippines’ Department of Foreign Affairs (DFA) Secretary, Teodoro Locsin Jr., filed a diplomatic protest, stating that while enacting a law is a sovereign right, the area involved, particularly the South China Sea, is expansive. The law is also a verbal threat of war to any country that violates it. If diplomatic protests persists, this may have an adverse effect to Philippines-China relations. However, an alternate course to take for the Philippines is to strengthen its engagement and cooperation with neighboring Southeast Asian countries, key security partners in the region, and the US who have the same detrimental perspective over the CGL when it comes to regional peace and security.
The result of China’s maritime expansion is through its Coast Guard. China’s development integrates the interest of the Chinese society in order to expand mutual cooperation with other countries. The gray zone tactics provide an approach where it is not seen as a competitor. Therefore, Beijing provides loans through the BRI and assistance through its vaccine diplomacy while securing their core interest. This core interest involves controlling its jurisdictional claims within its nine-dash line in the South China Sea. This paved the way for the development of the CCG and the CGL to support PLA Navy.
Economic
Aside from its detrimental effect to the political and diplomatic aspect of the country, the CGL will also have significant implications to Filipino fishermen and maritime vessel operators. The law is expected to have an effect on their livelihood, embarking with fear for their safety. Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (PAMALAKAYA), an industry association for Philippine fishermen, said that the new Chinese law contradicts the freedom of navigation recognized under international law. The new law is likewise a declaration of war and could be a serious threat for Filipino fishermen within the country’s territorial waters. This was evidenced by a Filipino fisherman where his fishing vessel was blocked by around five (5) or six (6) Chinese vessels along the Pag-asa Reef. Although the incident happened before the implementation of the CGL, it is worth noting that the said law can now be a basis for China to use their weapon in their jurisdictional waters, which as mentioned in the previous discussion, is a violation of UNCLOS provisions on a sovereign country’s jurisdictional waters.
Military
The CGL also encompasses the military aspect because of its vague provision on jurisdictional waters, which also overlaps with the EEZs of the Philippines. The Armed Forces of the Philippines (AFP) adheres to its mandate, to protect the state and secure the people. Protecting the state means standing up against intrusions in its territorial waters from adversaries. Currently, an order of deployment of more Philippine Navy (PN) forces to increase patrolling and secure the safety of Filipino fishermen is in place. If the CGL is enforced based on the nine-dash line claim and the use of force against foreign vessels, escalation of conflict will occur, and the military will be the first to respond to the situation.
Legal
The Philippines’ victory at the PCA invalidated China’s nine-dash line claim proving that it had no legal basis. The ruling is a remarkable win for the country to gain support from the international community against the new CGL. However, assertive behavior of China and the vagueness of their claims continue to pose problems in the international community especially to its neighbors. The general mandate of the CCG is to safeguard China’s territorial waters and its maritime interest. Supposedly, this would not be a problem if it is within China’s territorial waters. However, China does not limit its exploration to its territory. It is evident that China’s reliance on its ambiguous claims which are not honored by the UNCLOS may be considered as a destabilizing factor in the regional maritime security.
Conclusion and Recommendations
Understanding the CGL's current security threat is critical for addressing the ambiguity of some of its provisions. There is a need for China to clarify its claims and adjust its position conforming to international standards to reassure the security in the region.
The enactment of CGL can be considered as a verbal threat of war, and a sign of China’s infringement of the jurisdictional rights of other littoral states as defined by UNCLOS. Clearly, there is a need to acknowledge the current standpoint of the Philippines given the passage and the adoption of the CGL. The Philippine government should continue its efforts in collaborating with its neighboring countries and key security partners that share the same concern on the impact of the CGL on the security and stability of the region.
Moreover, the Philippine government must continue its effort to engage China to clearly define its “jurisdictional area”. There must be a thorough briefing of the CGL implementation, especially to its extent to prevent miscommunication and maritime incidents or accidents. This should be a priority at the forefront of the AFP to ensure that its mandate to the state and the people are upheld.
The AFP should continue its efforts of enhancing its territorial defense capability, while closely monitoring the current situation in the South China Sea. Furthermore, the AFP must continue to engage and collaborate with the United States and other security partners through maritime exercises and Freedom of Navigation Operations (FONOPS) in the SCS to ensure peace, security, and stability in the region. Another important factor that should be included is the establishment of a direct communication line between agencies such as West Philippine Sea such as the Western Command (WESCOM), the National Task Force - West Philippine Sea (NTF-WPS) and China’s Coast Guard to avoid escalation of tensions or conflict in the area. Lastly, there is a need to secure the West Philippine Sea by increasing the deployed Navy and Coast Guard to patrol the area.
In an environment where sovereignty is undermined by powerful states, it is important to recognize and bring forth multifaceted ways on how to overcome these measures to ensure national security and interest remain at the forefront.
Lara Jomalesa is a Defense Research Intern at the Office for Strategic Studies and Strategy Management, Armed Forces of the Philippines. At present, she is a second-year student pursuing a Bachelor’s Degree in International Studies Major in Chinese Studies and Minor in Economics at De La Salle University-Manila. She is the incoming Vice President for External Affairs in the DLSU University Student Government.
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