Issues & Insights Vol. 21, SR 2, pp. 21-27
“Use of Force in International Law and the China Coast Guard Law” is the fourth chapter of Issues & Insights Vol. 21, SR 2 — Advancing a Rules-Based Maritime Order in the Indo-Pacific. Authors of this volume participated in the Indo-Pacific Maritime Security Expert Working Group’s 2021 workshop that took place, virtually on March 23-24, 2021. The working group, composed of esteemed international security scholars and maritime experts from Japan, the United States, and other Indo-Pacific states, was formed to promote effective U.S.-Japan cooperation on maritime security issues in the region through rigorous research on various legal interpretations, national policies, and cooperative frameworks to understand what is driving regional maritime tensions and what can be done to reduce those tensions. The workshop’s goal is to help generate sound, pragmatic and actionable policy solutions for the United States, Japan, and the wider region, and to ensure that the rule of law and the spirit of cooperation prevail in maritime Indo- Pacific.
The South China Sea is one of the most important hotspots in the Indo-Pacific where major powers compete, and many nations are important stakeholders.Territorial and maritime disputes, both bilateral and multilateral, challenge regional security, stability, and development. Moreover, in this semi-enclosed sea, there is a range of non-traditional and transnational maritime threats such as piracy, terrorism, transnational organized crimes, and illegal, unreported and unregulated (IUU) fishing.
In the past few years, coastal states have increasingly invested in expanding and upgrading their maritime law enforcement agencies (MLEA) to deal with these multifaceted challenges. In the meantime, China has asserted excessive maritime claims and increased unilateral activities, such as land reclamation and the dispatch of Chinese vessels into waters of other countries, which have escalated tensions. Chinese actions have also led to serious incidents in the South China Sea. On January 22, 2021, the Standing Committee of China’s National People’s Congress passed a new law that gives the China Coast Guard (CCG) a more expansive set of authorities to use force. The law raised concerns among regional states and external powers regarding the maritime rules-based order vis-à-vis the East and South China Seas. This paper assesses this new Chinese law and its conformity with international law.
Use of force in international law
The use of force against the territorial integrity or political independence of any state is prohibited in modern international law, per Article 2.4 of the United Nations Charter. As one of the fundamental principles of international law, the principle of the non-use of force is also considered as a jus cogens rule. However, the UN Charter provides two exceptions for this principle in Articles 42 and 51, under which force may be necessarily used to maintain international peace and security. The former is related to the authority of the UN Security Council (UNSC) to take action, while the latter pertains to the right of self-defense.
In the maritime domain, the most comprehensive treaty is the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Its preamble highlights the importance of legal order at sea and the peaceful uses of the seas and the oceans. Article 301 of UNCLOS provides for the principle of the non-use of force against the territorial integrity or independence of any state, with the same approach as in Article 2.4 of the UN Charter.
The second aspect of the use of force in the maritime domain falls within the scope of maritime law enforcement operations. The United Nations Office on Drugs and Crime (UNODC) defines “maritime law enforcement as actions taken to enforce all applicable laws on, under and over international waters, and in waters subject to the jurisdiction of the State carrying out such enforcement activities”. When carrying out these kinds of operations, it may be necessary to use force to stop and board the suspected vessel, to search and detain the vessel and the people on board the vessel and to seize items from the vessel. However,maritime law enforcement is a routine peacetime policing operation, not a wartime operation. The difference between the use of force falling under Article 2.4 of the UN Charter and the use of force in maritime law enforcement must be distinguished. Therefore, the law of armed conflicts is not applicable in the case of maritime law enforcement operations. Instead, UNCLOS and other maritime laws and regulations set out legal frameworks for this peacetime policing operations.
Nguyen Thi Lan Huong (LLM) is a research fellow in the East Sea Studies Institute, Diplomatic Academy of Vietnam. Her research field is Public International Law and the Law of the Sea. She received her LLM in International and European Law in 2011, from the University of Nice-Sophia Antipolis (France). She is also a PhD candidate in international law at the Diplomatic Academy of Vietnam. This paper represents her own personal viewpoint only, not of any institution.
The Indo-Pacific Maritime Security Expert Working Group’s 2021 workshop and this volume were funded by a grant from the U.S. Embassy Tokyo, and implemented in collaboration with the Yokosuka Council on Asia Pacific Studies (YCAPS).
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Photo: An undated photo of Japan Coast Guard patrol boat (front) shadowing a Chinese Coast Guard vessel in Senkaku waters during a long, tense stand-off. Source: Japan Coast Guard via Nippon.com