This photo taken on September 22, 2023 shows Chinese coast guard ship (R) blocking a Philippine . [+] Bureau of Fisheries and Aquatic Resources' (BFAR) ship (L) while its personnel aboard a rigid hull inflatable boat sailing past the Philippine ship as it neared the Chinese-controlled Scarborough Shoal in the disputed South China Sea. China, which claims sovereignty over almost the entire South China Sea, snatched control of Scarborough Shoal from the Philippines in 2012. Since then, it has deployed coast guard and other vessels to block or restrict access to the fishing ground that has been tapped by generations of Filipinos. (Photo by Ted ALJIBE / AFP) (Photo by TED ALJIBE/AFP via Getty Images)
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China’s Coast Guard has been causing trouble. In June, the CCG clashed with Philippine troops at Second Thomas Shoal, leaving several Philippine service members wounded and a sailor without a finger. This month, the CCG seized a Taiwanese fishing boat and its crew near the Taiwan-governed Kinmen Islands, six miles from China’s coast. Beijing followed up by encircling Taiwan with dozens of warplanes and nine naval vessels. These violent escalations by the CCG did not come out of nowhere. China laid a legal foundation for the CCG’s actions through a new regulation authorizing more aggression in its neighbors’ waters. In other words, China set out its intentions in broad daylight. The law presages more conflict in the South and East China Seas and the Taiwan Strait. Policymakers must act now to keep China’s intentions from coming reality and forestall escalation.
China frequently lays a legal foundation for its illegal maritime actions against its neighbors. Using a practice known as institutional lawfare, China creates a domestic legal framework to legitimize actions that violate international law. By doing so, China can justify its own actions as in accordance with Chinese law in its domestic press and political statements, garnering legitimacy before its own people.
In mid-May, a Philippine humanitarian convoy successfully distributed food and fuel to fishermen at Scarborough Shoal while Chinese maritime militia, Navy, and Coast Guard vessels lurked nearby. In response, Beijing announced that “Administrative Law Enforcement Procedures for Coast Guard Agencies,” or simply “Order No. 3,” would come into force on June 15. The regulation empowers the CCG to arrest and detain any foreigners who engage in an “illegal violation” in “waters under China’s jurisdiction” for 30-60 days without trial. Potential offenses include “assisting others to illegal exit and enter the country,” “endangering national security interests, disrupting social and public order, or engaging in other illegal and criminal activities.” The law further allows the CCG, which falls under the command of China’s Central Military Commission, to create temporary maritime security zones for its military’s use of the sea, and “involving important fishery waters” related to “fishery production operations.” Another section of the law prohibits “unauthorized” surveying and mapping in waters under China’s jurisdiction.”
The ambiguity of the law has concerning implications for international security. The law does not define “waters under Chinese jurisdiction.” China claims the majority of the South China Sea according to the “Nine-Dash Line,” most recently asserted on its 2023 official map. The law could therefore be used to justify arrests of foreign vessels within all of its maritime neighbors’ EEZs, and to deny the rights of all foreign vessels to freedom of navigation and other lawful uses of the seas. Analysts initially viewed the law as a way for China to justify forceful interference at Scarborough Shoal and against routine military resupply missions at Second Thomas Shoal, which China has disrupted regularly for years. Besides Taiwan and the Philippines, CCG vessels have also been sailing near the Japanese Senkaku Islands for more than 200 days, raising fears of confrontation with Japan over the contested area.
YONAGUNI, JAPAN - APRIL 13: Yonaguni island is pictured on April 13, 2022 on Yonaguni, Japan. As . [+] Japans westernmost inhabited island, just 111 kilometres away from Taiwan and located close to the disputed Senkaku Islands, Yonaguni has seen an increased military presence as the Japanese government looks to ward off Chinese activity in nearby territory claimed by both countries. (Photo by Carl Court/Getty Images)
MORE FROM FORBES ADVISORThe law could also be used in other ways contrary to international law. China has already sought to keep its neighbors from engaging in lawful maritime surveys within their own resource-rich EEZs. The regulation also does not exempt warships and other sovereign immune vessels, leaving open the possibility that China may enforce it in a manner contrary to international law. Any arrests under the law are likely to turn violent, raising the possibility of escalation and conflict.
The law’s language involving fisheries is particularly concerning. The pretext for the seizure of the Taiwanese fishing vessel near the Kinmen Islands was a violation of China’s summer fishing ban. Annually since 1995, China has unilaterally imposed a ban on fishing in the northwestern South China Sea. The ban covers an area north of the 12 th parallel, which includes maritime claims that belong to China and Vietnam under UNCLOS, some of which are also claimed by Taiwan. While China’s stated purpose is environmental, it is a de facto attempt to assert control over disputed maritime areas such as the Spratlys and Paracels. Harsher enforcement could lead to a severe escalation in regional tensions.
Rarely does a malign actor tell the world exactly what it plans to do next. Through Order No. 3, China has left us a map and charted a course. China plans to erode international law using lawfare backed by CCG vessels. The United States must work to bolster the rules-based international order. The United States should work with its allies and partners to condemn China’s Coast Guard law and reassert the maritime boundaries prescribed by the United Nations Convention on the Law of the Sea. One-third of the world’s commerce transits the South China Sea, making CCG Order No. 3 a threat to all countries. The United States should lead an effort to publicize and condemn the threat of CCG Order No. 3 to destabilize international security, and raise awareness of the CCG’s existing violations of international law. The Philippines, Japan, Taiwan, and Vietnam, as nations especially affected, should lead a media offensive against CCG Order No. 3. The United States should also bolster the capacity of allies and partners in contested areas to patrol and assert their rights in their own territorial seas and EEZs. In that vein, today the United States committed $500 million to bolster Philippine capacity for maritime defense. By acting together with allies and partners, the United States can support and uphold the rules-based international order in the face of China’s plans to undermine it.