On May 15th, the China Coast Guard (CCG) posted a statement on its website announcing Decree No. 3, or the Regulations on Administrative Law Enforcement Procedures for Coast Guard Agencies. The statement said the regulations contain new provisions for the administrative law enforcement procedures for the CCG. The purpose of the new regulations is to standardize administrative law enforcement procedures and build on the two previous criminal procedure regulations issued in 2023. The regulations are the first time the CCG has issued provisions regarding how to detain individuals and seize their vessels if they “trespass.” The new CCG provisions is set to come into effect on June 15, 2024.
New Regulations
The 91-page document contains 281 articles in 16 chapters that outline how the CCG will handle various administrative functions for areas such as jurisdiction, period and service, investigation and evidence collection, and decisions involving administrative processing. However, some of the articles also detailed how CCG bureaus and personnel will detain individuals who trespass into China’s territorial waters. The articles that specifically deal with detaining and processing trespassers are Articles 11, 257, and 266.
Article 11 outlines how the CCG will be responsible for administrative cases that occur in waters considered to be “under the jurisdiction of China.” Specifically, the article specified the criteria for which the CCG bureau would be responsible for investigations. The cases will fall to the coast guard bureau where the “illegal act” occurred or to the coast guard bureau where the offender lives if it is more appropriate. The article then defined the meaning of several terms under the new regulations. For example, the regulation outlined what would be considered illegal acts or violations and the places where they occurred. Furthermore, it also provided explanations regarding what would be considered places of residence and habitual residences. The article then outlined what would be considered places of residence if a business or company was involved in any illegal acts. The regulation also defined the term ‘landing’ in the context of determining which bureau would lead the investigation.
The second article, Article 257, outlines the circumstances, offenses, and how long the CCG can detain foreigners for “violating exit and entry management.” The article explains that CCG personnel can detain foreigners if “further investigation is required,” and it’s approved by the coast guard bureau’s commander. The article then outlines the four offenses for which foreign nationals can be detained, with the two most significant offenses being “illegal entry and exit into the country [China]” and “endangering national security and interests, disrupting social and public order, or engaging in other illegal and criminal activities.” However, the regulation then specifies the number of days the individual can be held, with the minimum being 24 hours, which can be extended to 60 days if the case is “complicated” and approved by the superior-level coast guard organ. The article also explains the length of time the CCG can hold individuals if they cannot determine their nationality or identity.
Article 266 specifies what information the CCG bureau is required to provide after they detain foreign nationals and begin their investigation. One of the most significant aspects of the article is how it requires the bureaus to provide specific information about the individuals and vessels, such as name, sex, identity documents, the ship’s registration, name, the case’s circumstances, and the legal basis for the detention. The provincial-level bureaus are also required to notify the diplomatic missions of the countries that the detained individual is from within 48 hours. They are also required to notify the “foreign affairs department of the corresponding people’s government” of the foreigner’s detention within the prescribed time.
Philippines Reaction
The Philippines responded to the CCG’s new regulations with several individuals releasing statements condemning the articles and saying they would increase tensions in the South China Sea (SCS). Philippine House of Representatives Speaker Martin Romualdez released a statement on May 18th, where he said, “China’s aggressive pronouncements are a blatant escalation of tensions in the West Philippine Sea” and that the regulation flagrantly violates “international law and the established norms.” He also called for China to respect international rulings such as the 2016 United Nations Convention on the Law of the Sea (UNCLOS) and act as a responsible member of the global community. The speaker then said the “House of the Filipino People” will not tolerate China arresting any of its citizens or fishermen in their Exclusive Economic Zone (EEZ).
Bayan Muna Partylist Chairman, Neri Colmanares, made a brief statement about China’s new CCG regulations on May 18th. Colmanares said that the CCG cannot arrest Philippine citizens “in the West Philippines Sea [South China Sea], especially in areas covered by [the Philippines] EEZ.” Furthermore, the chairman said Bayan Muna reiterated its call for “the Philippines and other ASEAN countries to file a joint resolution in the United Nations” to demilitarize the SCS.
Philippine President Ferdinand Marcos Jr. also made a brief statement on May 18th to various news outlets when he was in Makati City. Marcos said that it is “completely unacceptable to the Philippines” when asked by reporters about the CCG’s new regulations. Marcos said he does not talk about “operational details,” but he did say that the Philippines views the regulations as unacceptable, and the government will take whatever measures are necessary “to always protect our [the Philippines] citizens.”
On May 18th, former Philippine Justice Antonio Carpio also issued a statement regarding the legality of the CCG’s regulations. Carpio first pointed out that the UNCLOS prohibits any state from subjecting “the high seas to its sovereignty.” The CCG’s regulations are “in clear violation of UNCLOS” since they allow the organization to arrest and detain foreign individuals and vessels that sail in the SCS. Carpio further pointed out that the CCG “is authorized to arrest, detain, and expel foreign individuals or foreign vessels that sail in the EEZs of Vietnam, the Philippines, Malaysia, Brunei, and Indonesia falling within China’s 10-dash line. He then mentioned the 2016 UNCLOS arbitration ruling that invalidated China’s 10-dash line. Furthermore, he said that the regulations cannot apply to the SCS because China has no jurisdiction over the EEZs of the coastal states. Carpio said that the threat or use of force is outlined “in settling disputes between states” that make up ASEAN coastal states under the UN Charter. However, Carpio also urged the Philippines to invite Australia, France, Japan, the United States, the U.K., and other states “to jointly or individually sail” in the EEZs of the SCS to show their objection.
Analysis
The CCG’s new regulations authorize its personnel to detain individuals and seize vessels that enter Chinese waters in response to the Atin Ito! trip to Scarborough Shoal on May 16th. However, the regulations will also allow the CCG to increase pressure not only against other countries with SCS claims but also in other disputes, such as with Japan over the Senkaku Islands. China released the regulations to dissuade civilian organizations from traveling to Scarborough Shoal and other features that fall under China’s 10-dash line. For example, the CCG announced the regulations one day after Atin Ito! traveled to the Scarborough Shoal to hand out food packs and fuel and demonstrate the Philippines’ sovereignty over the feature. China likely prepared the regulations after the organization’s first mission to visit various Philippine-occupied features in the SCS in December 2023.
However, China chose not to release the new regulations until the Philippines crossed one of its red lines, such as Philippine Non-Governmental Organizations (NGO) conducting trips or other actions that would challenge the country’s sovereignty in the SCS. The reason why China developed the regulations is because it views the trips by Philippine NGOs as the Philippines escalating the dispute. However, Atin Ito! and other organizations conducted their missions within the Philippines’ EEZ and did not venture into what would be considered international waters. The regulations indicate that China is contemplating detaining individuals who illegally enter its waters, such as the SCS. They also indicate that the country is laying the groundwork to provide a rationale for detaining civilians and vessels if they decide to begin detaining individuals.
While China would first use the new regulations in the SCS, it would likely extend their use to other maritime disputes, such as the Senkakus or Vietnam in its EEZ or the Gulf of Tonkin. However, China would only do so if either Japan or Vietnam were to cross similar ‘red lines’ that the Philippines did when it allowed Atin Ito! to travel to the Scarborough Shoal. Regarding Japan and Senkakus, it would likely involve civilian NGOs or other groups conducting missions to the island chain to demonstrate Japan’s sovereignty over the area without the Japanese government stopping the group. China would view these actions as Japan escalating the dispute beyond the stalemate it is currently in by empowering civilian groups to push its sovereignty claims over the Senkakus. Furthermore, China would view the NGOs’ trips to the islands as Japan attempting to increase its control over the island chain by allowing civilians to visit the Senkukus, one of China’s ‘red lines.’ However, Japan also understands that China would extend the regulations to the Senkuku Islands to further press its claim over the area. Japan would likely attempt to prevent any groups from organizing or conducting trips to the islands to prevent escalation of the dispute with China.
While there is potential for China to use the CCG regulations against Vietnam in the Gulf of Tonkin, it would only do so if the country crossed ‘red lines.’ One such ‘red line’ is Vietnam redrawing its baselines in the gulf after China developed a new baseline for its territorial waters in the same area in March. China would view any attempts by Vietnam to redraw its baselines in the gulf to better protect its territorial waters as crossing ‘red line’ if the country believes the baselines will encroach on its sovereignty. However, China would be more willing to use the regulations to detain fishermen that operate in Vietnam’s EEZ, which China also claims in its entirety. China understands that there were past instances when CCG vessels detained or expelled Vietnamese fishermen from areas in Vietnam’s EEZ that did not appear in the country’s news outlets. China also knows that Vietnam will limit the spread of information about the detentions to prevent anti-China protests from occurring throughout the country and causing unrest.
Furthermore, China knows that Vietnam would not allow these protests because of the potential for them to gain traction among the wider population. The protests would also extend to other areas, such as calling for greater rights or calling for the overthrow of the Vietnamese Communist Party’s rule. However, Vietnam would use its relationships with its Chinese counterparts to prevent detentions from occurring in either its EEZ or the Gulf of Tonkin. For example, the Vietnamese Coast Guard (VCG) would use its relationship with the CCG to prevent any detentions of its citizens. The VCG would also ask the CCG to conduct joint patrols in the Gulf of Tonkin to decrease the likelihood that China would detain its citizens. However, Vietnam would be reluctant to conduct patrols in the SCS due to the perception that it is working with China to detain its citizens.