A Philippine fishing boat is seen anchored near China Coast Guard vessels patrolling at the disputed Scarborough Shoal. Photo: Reuters / Erik De Castro

China has instituted a controversial new law that authorizes its coast guard “to take all necessary measures, including the use of weapons, when national sovereignty, sovereign rights, and jurisdiction are being illegally infringed upon by foreign organizations or individuals at sea.”

It specifies the circumstances under which different types of weapons can be used and allows the coast guard to launch pre-emptive strikes without prior warning if commanders deem it necessary. The meaning of “waters under China’s jurisdiction” could include those within its disputed claims.

International media have sensationalized the new law, implying that China will begin firing at will and if necessary for effect on foreign fishing vessels in waters justifiably claimed by others.

Without a UN Security Council mandate or an act of self-defense against a “grave use of force,” it is a violation of international law to use excessive or deadly force against unarmed civilian vessels and crew like fishing boats. This was confirmed by the International Tribunal on the Law of the Sea in July 1999 when it ruled on the MV Saiga case.

While using potentially deadly force against civilian fishing boats is usually a violation of international law, it is an unfortunate but common practice around the world. Ironically the most common targets of the use of such force are Chinese fishing boats and crew.

China’s fishing fleet – the world’s largest – functions around the world – often “illegally” – and overwhelms the ability of other countries to prevent it from doing so.

In March 2016, the Argentine coast guard fired on and sank a Chinese boat allegedly fishing illegally in its claimed exclusive economic zone (EEZ). According to Argentina, the Chinese vessel rammed the coast guard vessel and tried to escape.

In September 2016, three Chinese fishermen were killed by flash grenades thrown on to their boat by the South Korean coast guard in an attempt to arrest it. And that October, after the sinking of a South Korean coast guard vessel by a Chinese fishing vessel, Seoul warned, “We will actively respond to Chinese fishing boats that obstruct justice by using all possible means if needed such as directly hitting fishing and gaining control of these Chinese fishing boats as well as firing common weapons.”

In December 2017, the South Korean coast guard said warning shots were fired at Chinese vessels because “the safety of our own coast guard members was at risk.”

In June 2016, an Indonesian naval vessel fired on a Chinese boat fishing illegally in Indonesia’s claimed EEZ around the Natuna islands.

Even Canberra has announced that its new rules of engagement allow the Australian Navy to fire on foreign fishing vessels that ignore its orders.

But the legal situation is made even murkier by China’s and Vietnam’s use of maritime militia that assist both states in maintaining and implementing claims to features and maritime space in the South China Sea.

The US has deployed coast guard vessels to the South China Sea to defend against coercion by China’s use of coast guard and armed militia aboard fishing boats to intimidate a third country’s vessels. It has warned China that it will respond to provocative acts by its coast guard and fishing boats in the same way it does to the PLA Navy.

Of course implementation of this policy would – like that of the Chinese law – depend on the specific rules of engagement, but it could result in use of deadly force against a civilian boat and crew – a violation of international law.

Given this context, the US policy is probably aimed specifically at China’s coast guard or maritime militia assets that interfere with US Navy operations, because they are allegedly being coordinated by the People’s Liberation Army Navy. But regardless of the reason it would still be a violation of international law.

The crux of the concern in Southeast Asia is that China will apply this law in its claimed waters even though that claim has been rejected by an international arbitration panel. The Philippines in particular fears the worst and has raised this alarm. It filed a diplomatic protest saying the law is “a verbal threat of war to any country that defies [it]” and explained that silence would indicate acquiescence.

This is a potentially serious issue. But the Philippines is being somewhat hypocritical given that in May 2013, its coast guard fired on a Taiwanese fishing boat in waters claimed by both the Philippines and Taiwan, killing a Taiwanese fisherman. Taiwan reacted very strongly, freezing diplomatic relations and deploying naval vessels to the area.

Ironically, at the time China’s Foreign Ministry condemned the act as “barbaric.” The Philippines originally claimed the shooting was in response to the threat of being rammed. But eventually, the Philippines National Bureau of Investigation recommended homicide charges against the coast guard personnel responsible and the Philippines officially apologized to the victim’s family.

Moreover, contrary to the Philippines’ allegations, such Chinese action would not be a casus belli.

However, there is genuine but separate concern that China’s new law allows the Chinese coast guard to remove other countries’ structures on reefs it claims.

If these “structures” were defended by the rival claimants’ armed forces – like the grounded Sierra Madre on the Philippines-claimed Second Thomas Shoal – the attempt to remove such structures could be a violation of the UN Charter’s prohibition of the use of force. In this case, such an “attack” could trigger the US-Philippines Mutual Defense Treaty. But China is well aware of that possibility and would be unlikely to invite it.

Indeed, the Chinese law was most likely aimed at controlling the many Vietnamese fishing boats operating illegally in China’s undisputed  territorial waters and EEZ around Hainan – and perhaps around the disputed Paracels. Although these Vietnamese fishing boats are violating China’s laws, that does not meet the threshold for use of force against them.

Nevertheless, it raises the question of when – if ever – the use of force against civilians or civilian vessels is justified. It probably is if it is in clear self-defense against a potentially deadly attack – even from a civilian vessel – armed or not. But anything less is legally questionable. It would seem that pre-emptive use of force is never justified in such “gray” situations.

The circumstances of the use of force and what is an appropriate degree should be added to the South China Sea Code of Conduct negotiations or addressed separately by the South China Sea claimants. This is urgent to prevent incidents that could spiral out of control and lead to wider conflict.

Mark Valencia

Mark J Valencia is an internationally recognized maritime policy analyst, political commentator and consultant focused on Asia. Most recently he was a visiting senior scholar at China’s National Institute for South China Sea Studies and continues to be an adjunct senior scholar with the Institute. Valencia has published some 15 books and more than 100 peer-reviewed journal articles.