China’s new threat

Brinkmanship is still the game China is playing with its new regulations authorizing the China Coast Guard (CCG) to detain for up to 60 days without trial foreigners who cross into what China claims are her borders.

Consequently, the newly approved regulations, which took effect on 15 June, rang alarm bells in Asian and Western capitals and elicited strident denunciations from the Marcos administration.

An alarm was raised primarily over the fact the new regulations contradict the international law of the sea. A contradiction that many understand is a looming threat to the economic and security interests of Asian coastal states.

The new regulations, therefore, shouldn’t be quickly dismissed as being merely about China arresting people violating its laws.

Instead, the new regulations raise the unwanted specter of WHERE (emphasis mine) exactly China can legally arrest or detain people, particularly since China practices “strategic ambiguity” about her exact sea borders.

China’s “strategic ambiguity” about her maritime borders is of course courtesy of her self-serving 10-dash line encompassing large swaths of the South China Sea, which led her to set aside the international law of the sea.

The international law of the sea, as one maritime expert puts it, “sets out the international legal norms for maintaining and building order at sea and has a long history. Concepts such as freedom of the seas and the right of innocent passage in territorial seas have been established as principles and rights under customary international law through the accumulated practices of countries.”

Today, the international law of the sea is codified in the United Nations Convention on the Law of the Sea (UNCLOS) which was adopted in 1982.

China’s position, however, “is that UNCLOS does not govern all matters of the international law of the sea so that its scope is “limited.” China claims her “historical rights” in the South China Sea were established before the adoption of UNCLOS, insisting that UNCLOS cannot deny pre—established rights.

China’s wild claim was rejected by an international tribunal’s ruling in the South China Sea arbitration case in July 2016. China, however, refuses to recognize that ruling.

Those same crucial points were raised earlier against China’s controversial 2021 Coast Guard Law.

The CCG law not only disregards international law but gives legal cover to China to ramp up its low-intensity approach — the use of “gray zone” tactics in the contested seas — to assert its power over the region.

The CCG law essentially empowers its maritime law enforcement fleets to use lethal force against foreign ships operating in China’s waters and airspace above waters, including in disputed waters like the West Philippine Sea (WPS).

For the misinformed, since the Chinese military-controlled CCG has both law enforcement and military authority, its vessels aren’t strictly civilian, which led one Japanese analyst to quip “It is a navy force, only painted differently.”

The ambiguity of the CCG’s ships gives China a strategic advantage.

“It is not possible for other parties to judge under which authority CCG ships are operating. The CCG seeks to gain a strategic advantage through this ambiguity by disrupting the judgment of the opposing side out in the field, causing delays in decision-making and responses,” points out a Japanese maritime security expert.

The new regulations, which for the first time set out an operational procedure should the CCG arrest people on the high seas, are a further clarification of the self-serving CCG law.

How soon and where China will aggressively exercise her threat to arrest people on the high seas remains to be seen.

Regardless, the new regulations will now definitely make every interaction between China and other claimant nations in the South China Sea even more dangerous, possibly triggering outright conflict.

As for us, the new regulations raise a direct threat to Filipino fishermen and the Philippine Coast Guard sailing out there in Panatag Shoal and elsewhere in the country’s exclusive economic zone.