1 Introduction

The Coast Guard Law of the People’s Republic of China (hereinafter referred to as the CCG Law) was officially adopted and came into force in 2021. It provides a legal basis for the activities of the Chinese Coast Guard (hereinafter referred to as the CCG). This is also an attempt by the Chinese government to actively meet the international obligations of the United Nations Convention on the Law of the Sea (hereinafter referred to as the UNCLOS). In addition, this means that China will use domestic and international rules to safeguard its national maritime rights and interests.

The CCG Law authorized the CCG to combat maritime violations and crimes in accordance with the law, but since the objects of law enforcement often involve foreign organizations and individuals, and there are disputes between China and neighboring countries over the sovereignty of some islands and reefs and maritime delimitation, the maritime rights protection and law enforcement activities regulated by the CCG Law necessarily not only include legal matters but also de facto affect political and diplomatic relations between countries. Therefore, some questions and concerns about the provisions of the CCG Law on ‘areas under the jurisdiction of China’, ‘forcible measures against illegal acts of foreign warships and government vessels’, and ‘the nature of CCG agency’ have emerged from the international community (hereinafter referred to as the ‘International Concern Provisions’). There is even a wrong view that CCG Law is illegal under international law. The key to the implementation of CCG Law is the accurate interpretation and application of these provisions.

Current research on the CCG Law can be divided into two aspects. The first is the international public opinion and influence engendered by foreign-related provisions (Aristyo, 2021; Guilfoyle & Chan, 2022; Shigeki, 2021). The second is analyzing the concept and construction of China’s maritime rights protection legal system, including ‘maritime rights protection and law enforcement’ (Chen & Bai, 2023; Mao, 2020; Yang & Hao, 2021; Zhang, 2021). Current research on the CCG Law related to the theme of this paper somewhat lacks an analysis of the connection between international and domestic law. The coordinated promotion of the domestic rule of law and the foreign-related rule of law should simultaneously pursue the construction of the rule of law in the Chinese view and the rule of law in the foreign view to achieve the comprehensive rule of law in both domestic and foreign affairs, balance the need to safeguard sovereignty, security, and development interests, and take into account both China’s national interests and the interests of the international community (Cai, 2022). Domestic law and foreign-related law should be coordinated to implement the CCG Law. Based on this premise, this paper emphasizes the effective application of the coordinated approach. On the one hand, the argument here provides solutions to the disputes and difficulties encountered in the enactment of the CCG Law. On the other hand, it can, in theory, improve China’s legal system of maritime rights protection and improve and lead the development of the international maritime rule of law. Based on this, this paper is devoted to making an accurate interpretation of the provisions about which the international community is widely concerned. In addition, the article will make suggestions on the future development of the CCG Law.

2 Interpretation and application of the ‘areas under the jurisdiction of China’

Article 3 of the CCG Law stipulates that the CCG agency should conduct the activities of maritime rights protection and law enforcement in and over the areas under the jurisdiction of China. The ‘areas under the jurisdiction of China’ is the core concept that defines the scope of the CCG’s maritime rights protection and law enforcement activities. The CCG Law does not explain further exactly what constitutes areas under the jurisdiction of China. Article 74(2) of the CCG Law (Draft) stipulates, ‘inland waters, territorial waters, contiguous zones, exclusive economic zones, continental shelves as well as all other seas areas under the jurisdiction of the People’s Republic of China’ (CCG Law [Draft], 2020). This definition was deleted when the CCG Law was adopted. That raises some questions; for example, a Japanese academic argues that the CCG Law uses vague wording about China’s jurisdictional waters, particularly, ‘China’s position on jurisdictional waters in the South China Sea has long clashed with the UNCLOS text’ (Shigeki, 2021). Indeed, when examining China’s domestic laws, such as the Maritime Traffic Law, the Marine Environmental Protection Law, and the Fisheries Law, the provisions on precisely those ‘areas under the jurisdiction of China’ all use the same expression. Article 1 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of the Relevant Cases Occurring in Sea Areas under the Jurisdiction of China (I) issued in 2016 does not explain what the ‘other sea areas under the jurisdiction of the country’ are (People’s Court Daily, 2016).

These ‘other sea areas under the jurisdiction’ broadly encompass three types of areas. The first type of sea area is the common fishing zone. For the joint conservation and development of fishery resources, China and its neighboring countries have established common fishing zones, such as the China–Vietnam Beibu Gulf zone, by signing agreements. Such zones may be carved out of the exclusive economic zones of other countries; in such cases, the CCG conducts supervisory inspections of marine fishery production and prevents, stops, and punishes illegal and criminal maritime activities in accordance with these bilateral agreements (Huang et al., 2016). The second type is the high seas. Based on the principle of flag state jurisdiction, China has jurisdiction over Chinese fishing vessels, citizens, and organizations operating on the high seas. Furthermore, according to the international conventions ratified and acceded to by China, such as the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, the CCG was authorized to carry out fisheries law enforcement patrol missions on the high seas of the North Pacific Ocean (China Military Online, 2022). The third type is the waters over which China claims to enjoy historical rights per its domestic legislation (Zhang, 2022). Article 14 of the Chinese Law on the Exclusive Economic Zone and the Continental Shelf stipulates that ‘the provisions in this Law shall not affect the rights that the People’s Republic of China has been enjoying ever since the days of the past’. Moreover, China’s maritime policy white papers, government announcements, and other official statements have adhered to the same position (Chinese Ministry of Foreign Affairs, 2016).

China and some neighboring countries have contested the sovereignty of islands and maritime delimitation in the South China Sea; thus, the areas under the jurisdiction of China inevitably include disputed waters. In particular, China’s claim of historic rights over the South China Sea is often criticized and questioned by Western countries, which allege that the claim has no legal basis and is asserted without any specificity as to the nature or geographic extent of the ‘historic rights’. The award of the South China Sea Arbitration (Philippines v. China, 2016) and a report by the State Department (Bureau of Oceans and International Environmental and Scientific Affairs, 2022) deemed that China’s historic claims in the South China Sea are inconsistent with the UNCLOS. Thus, further interpretation of the country’s historic claims is necessary to understand the provision of the ‘areas under the jurisdiction of China’.

Indeed, no provision in the UNCLOS denies rights based on historical practice by a state. On the contrary, different types of maritime claims, such as historic titles, historic bays, historic waters, and traditional fishing rights, are all recognized and respected by the UNCLOS (Fu & Cui, 2019). Article 15 of the UNCLOS stipulates that where it is necessary because of historic title or other special circumstances to delimit the territorial seas of the two states, this should be done in a way that is at variance therewith. The definition of an ‘archipelago’ in Article 46 of the UNCLOS includes a group of islands that have been regarded historically as such. Article 51 of the UNCLOS stipulates that an archipelagic state shall recognize the traditional fishing rights of the immediately adjacent states. These stipulations reflect the importance of historical factors in the UNCLOS. In addition, the preamble of the UNCLOS also clearly states that ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law’. Historic rights fall into this category of matters.

China enjoys various historical rights in the South China Sea based on long-term historical practice. An example of the exercise of such rights is the Location Map of the South China Sea Islands published by the Chinese government in 1947, which depicts the U-shaped line. The interpretation of this U-shaped line is key to understanding China’s claim to historical rights in the sea. Chinese jurisdiction within the U-shaped line can be divided into two levels. The first level is for islands within the line. China has acquired sovereignty over the islands in accordance with ‘pre-emption’ in international law. The country was the first to have discovered, named, explored, and exploited Nanhai Zhudao and its relevant waters; it was also the first to have exercised sovereignty and jurisdiction over them continuously, peacefully, and effectively, thereby establishing territorial sovereignty and relevant rights and interests in the South China Sea. China also has the right to claim the territorial sea, contiguous zone, exclusive economic zone, and continental shelf of these islands in compliance with the UNCLOS. Thus, China exercises sovereignty and jurisdiction in these different sea areas. The second level refers to waters within the U-shaped line other than those at the first level. Historically, China has enjoyed various rights in these waters on specific matters such as fishing, marine scientific research, environmental protection, and navigation safety rights. Notably, these rights are not exclusive but a priority whose reasonable exercise is based on the premise that it does not interfere with the normal freedom of navigation, overflight, and the laying of cables and pipelines by other states.

The ‘areas under national jurisdiction’ can be explained in terms of international law and state practice. In recent years, the Biodiversity Beyond National Jurisdiction Agreement negotiations have become an important issue under the international law of the sea (United Nations, 2023). This ‘beyond national jurisdiction’ refers to the waters over which states have no jurisdiction according to international law; these waters are variously referred to as the high seas beyond the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf. From this perspective, it can be concluded that the relative concept is the ‘areas under national jurisdiction’. Concerning state practice, many countries also define the application scope of Coast Guard Law as ‘areas under national jurisdiction’. For instance, Title 14, United States Code, ‘Coast Guard’ Chapter 102 states that the Coast Guard carries out law enforcement over the high seas and waters that are subject to the jurisdiction of the United States (U.S. Code, 1947). Article 2, Paragraph 1 of the Vietnam Coast Guard Law stipulates that the ‘Vietnam Coast Guard defends national sovereignty, sovereign rights, and jurisdiction in the waters under the jurisdiction of Vietnam’ (Luật Cảnh sát biển Việt Nam, 2018). Article 1(a) of the Philippine Coast Guard Act mentions ‘coast guard law enforcement in waters subject to the jurisdiction of the Philippines and upon the high seas’ (Republic Act No. 5173 of Philippines, 1967). The Japan Coast Guard Act does not clearly explain the jurisdictional sea area but merely lists the functions and tasks of the Japanese Coast Guard at sea (Japan Coast Guard Act, 2022). The Korea Maritime Security Act refers to the scope of its enforcement as ‘guard waters’, which are ‘waters within the state’s rights, including coastal waters, offshore waters and far-sea waters’ (Korea Maritime Security Act, 2022). However, the Act does not specify how these waters are distinguished. Indeed, the ‘sovereignty, sovereign rights, jurisdiction, and historic rights’ are not the same in ‘different types of areas under national jurisdiction’. States have different rights and obligations in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the high seas, and other sea areas under the jurisdiction; thus, the basis of rights and the scope of authority of state maritime jurisdiction vary. In general, this scope of authority in different sea areas is stratified and thus decreases from near to far, that is, from full sovereignty to sovereign rights and hence to partial jurisdiction. Sovereignty, sovereign rights, jurisdiction, and historic rights are different rights enjoyed by coastal or flag states in different maritime zones in adherence with international law, including the UNCLOS. A coastal state has territorial jurisdiction over its territorial waters, sovereign rights over its exclusive economic zone, and exclusive jurisdiction on the high seas. Historic rights, as mentioned above, have multiple meanings and exist in various types of sea areas. Thus, the concept of ‘areas under national jurisdiction’ denotes diverse sea areas with different legal characteristics. Further interpretation of ‘areas under the jurisdiction of China’ should explore the differences between the rights of administrative enforcement of the CCG in different jurisdictional waters (more details on this issue are given in Table 1).

Table 1 Law enforcement authority of the CCG in different sea areas
Full size table

In contrast, the Coast Guard’s legislation in most states contains provisions in principle concerning areas under national jurisdiction. If some foreign officials and media insist on attacking CCG Law despite their own national or international practice on the interpretation and application of the issue of ‘areas under national jurisdiction’, it may reflect their double standards precisely. Furthermore, because China has not completed maritime delimitation with its neighboring countries (to date, China’s only delimitation is the maritime boundary with Vietnam in the Beibu Gulf), such regulations are de facto relatively flexible and may provide space for future negotiation. Finally, if the so-called clear application clause of waters under the jurisdiction is added to the Chinese legislation, it will not only be detrimental to the maintenance of China’s territorial sovereignty and maritime rights and interests but may also narrow the scope of application due to legislation, and the CCG could not carry out maritime rights protection and law enforcement activities in specific waters according to law.

3 Interpretation and application of the ‘forcible measures against illegal acts of foreign warships and government vessels’

According to Article 21 of the CCG Law, ‘where a foreign warship or foreign government vessel used for a noncommercial purpose violates any law or regulation of China in the areas under the jurisdiction of China, a coast guard agency shall have the power to take necessary precautionary and control measures to stop such vessel and order it to immediately leave the relevant waters; and if it refuses to leave and causes serious harm or presents a serious threat, the coast guard agency shall have the power to take such measures as forcible expulsion and forcible ejection by towing’ (CCG Law, 2021). Deterring and counteracting the illegal acts of the U.S. and other Western countries’ warships and government vessels from infringing on the waters near Xisha and Nansha Islands is one of the main purposes of the provision. Some scholars have raised doubts about it, including whether the CCG enforcement includes the use of force and if this would detract from the immunity of foreign warships and government vessels (Aristyo, 2021). Some even consider it an obstacle to freedom of navigation. An accurate interpretation of the provision is needed.

According to the text and context, the forcible measures mentioned in Article 21 of the CCG Law should be understood as including the use of force as stipulated in Article 22 (CCG Law, 2021). In international law, the use of force is divided into two statuses: in law enforcement operations and between countries. Regarding the former, countries such as the United States, Japan, South Korea and Vietnam all authorize the Coast Guard to use force in specific situations (Gao, 2009). In recent years, South Korea has issued strict law enforcement policies, allowing the use of force against Chinese fishing vessels in the Yellow Sea by the Korean Coast Guard, including the firing of cannons and ramming (Kim, 2019). International judicial judgments and arbitral awards have also shown that maritime law enforcement officers may use weapons within a reasonable range if certain necessary conditions are met (ITLOS, 1999). These conditions require the use of force to follow the principles of necessity and proportionality and are generally used as a last resort (Shearer, 1998). Regarding the use of force between states, the principle of prohibiting the use of force has been enshrined in the UN Charter. The use of force by a state may lead to a war of aggression unless the right of self-defense is invoked and exercised (Shi, 2018).

Does the use of force by the Coast Guard detract from the immunity of foreign warships and government vessels? It needs to be made clear that these immunities are affected by the different maritime regimes of the UNCLOS. On the high seas, this type of vessel enjoys complete immunity from the jurisdiction of any country other than the flag state (UNCLOS, 1982). In the territorial sea, the exercise of such immunity is subject to the prescriptive jurisdiction of the coastal state with respect to innocent passage (Shaw, 2014). Article 21 of the UNCLOS on the prescriptive jurisdiction of the coastal state includes subsection A, ‘Rules Applicable to All Ships’, and Article 32 of the UNCLOS also clearly states that the immunity specified here does not apply to noncommercial purposes (Proelss, 2017). That is to say, foreign warships and government vessels cannot use the right of immunity as an exception to oppose the implementation of the laws and regulations of the coastal state. In addition, the immunity regime stipulated in the UNCLOS is only concerned with immunity from jurisdiction, not immunity from responsibility (UNCLOS, 1982). This provides a legal basis for coastal states under the framework of the law of state responsibility, which authorizes them to exact a penalty for violations of international obligations by foreign warships and government vessels.

As for the non-innocent passage of foreign warships and government vessels in territorial waters, the coastal state can take two countermeasures. One is to directly ‘request the warship to leave immediately’ (Article 30 of the UNCLOS). The other is for the coastal state to formulate laws and regulations on innocent passage according to Article 21 and use the right to ‘take necessary steps to prevent non-innocent passage’ (Article 25(1) of the UNCLOS). The UNCLOS does not clarify what the ‘necessary steps’ refer to specifically. Considering the damage and security threat to the coastal state caused by the refusal of warships to leave and their non-compliance with innocent passage, to stop illegal acts as soon as possible, the use of force may be necessary (Delupis, 1984). Churchill and Lowe believe that coastal states can use ‘any necessary force’ to require warships to leave their territorial waters (Churchill & Lowe, 1999). Of course, such use of force must follow the principles of necessity and proportionality. Scholars have also pointed out that the coastal state can take forcible measures, including countermeasures, in accordance with the principles of general international law (Oxman, 1984). In other words, if foreign warships and government vessels commit illegal acts first, then actions taken by the coastal state are de facto legal countermeasures. This does not violate international law, and it does not detract from the prior immunity of foreign warships and government vessels.

In the exclusive economic zone and continental shelf, the immunity of foreign warships and government vessels is also limited.. This immunity should be restricted according to the laws and regulations of the coastal state. Article 11 of Chinese Law on the Exclusive Economic Zone and the Continental Shelf provides that ‘all states shall, on the premise that they comply with international law and the laws and regulations of the People’s Republic of China, enjoy the freedom of navigation in and flight over its exclusive economic zone’ (Chinese Law on the Exclusive Economic Zone and the Continental Shelf, 1998). Other states have also adopted similar laws and regulations (Galdorisi & Kaufman, 2002). Articles 73 and 111 of the UNCLOS stipulate that the activities of foreign warships and government vessels in exclusive economic zones must not obstruct the exercise of the sovereign rights and jurisdiction of the coastal state; otherwise, it will constitute an illegal act (Nordquist, 2015). In addition to the resource development activities conducted by the coastal state based on its sovereign rights, constructing and using artificial islands, installations, and structures; conducting marine scientific research; and protecting the marine environment as stipulated in Article 56 of the UNCLOS can be regarded as a basis for making laws and regulations within the exclusive economic zone. Accordingly, coastal states are entitled to exercise jurisdiction consistent with the abovementioned matters and control any illegal acts of foreign warships and government vessels. The legislation of Article 12, Paragraph 2 of the CCG Law embodies this jurisdiction.

Thus, the CCG’s enforcement measures against violations of Article 21 of the CCG Law do not affect the immunity of warships and other foreign government vessels used for noncommercial purposes. This is because under Article 32 of the UNCLOS, ‘sovereign immunity’ does not exclude the responsibility of foreign warships and government vessels to the coastal state; accordingly, the coastal state can exercise jurisdiction and pursue relevant responsibilities over foreign warships and government vessels in conformity with the law. In other words, Article 21 of the CCG Law attempts to underscore the safeguarding of Chinese national sovereignty and maritime rights and interests. This is a specific application and further development of Article 25(1) of the UNCLOS. Moreover, China is engaged in complex maritime disputes not only with neighboring countries but also with Western countries led by the United States, which continue to provoke and attack China’s maritime claims. Thus, the identity of the object of law enforcement by the CCG is often sensitive. Whether the CCG uses forcible measures in law enforcement operations depends on the extent of the illegality of foreign warships and government vessels. If the CCG uses unnecessary or excessive force in law enforcement operations, this countermeasure may instigate a military dispute, which may involve the use of force between states.

4 Nature of CCG agency

Discussion about ‘the nature of CCG agency’ hinges on whether it is an administrative or a military function (Guilfoyle & Chan, 2022; Yamamoto, 2021). The CCG usually performs the duties of maritime rights protection and law enforcement. However, Article 83 of CCG Law stipulates that the CCG agency shall perform defense operations and other tasks in compliance with the National Defense Law, the Armed Police Law, and other applicable laws, military regulations, and the orders of the Central Military Commission. This seems to indicate that the CCG is an organization with the dual functions of armed force conducting defense operations in waters under their jurisdiction (military activities) and a maritime law enforcement agency (law enforcement activities).

In terms of international law, neither the UNCLOS nor general international law has made provisions on the nature of maritime law enforcement agencies. Currently, there are two types of maritime enforcement agencies in the world. One is the navy as the main body, directly coordinating all maritime law enforcement activities. The United Kingdom, France, and Italy are examples. The other is a special maritime law enforcement agency, the Coast Guard, set up to perform solely maritime law enforcement duties. The United States, China, Japan, South Korea, and Vietnam are examples (Shearer, 1998). With the increase of non-traditional maritime security challenges, such as marine natural disasters, terrorism, piracy, and transnational organized crime. Many countries are gradually strengthening the navy's non-military operational capabilities. Another trend is that more and more countries attach importance to the integration of on-war and peacetime capabilities of the Coast Guard agency and endow them with dual attributes of law enforcement and military affairs (Cui, 2021). For example, the U.S. Coast Guard is affiliated with the U.S. Department of Homeland Security. In peacetime, it is responsible for the law enforcement of coastal waters and waterways, the rescue of ships and aircraft, and pollution control. In wartime, it can be transferred to become a part of the navy (Britannica, 2023). The Japanese Coast Guard belongs to the Ministry of Land, Infrastructure, Transport and Tourism. It is mainly responsible for maritime security, rescue, marine intelligence, and marine traffic. At the same time, the Japanese Coast Guard’s command, communication, intelligence, and other systems are interoperable with the Japan Maritime Self-Defense Force. Most of the Japanese Coast Guard’s ships are large patrol ships of an obvious military nature. Article 80 of the Japan Self-Defense Force Law stipulates that during defensive and security operations, the defense minister can command part or all of the Coast Guard forces following the order of the cabinet (Japan Self-Defense Force Law, 2022). Since its separation from the navy in 1998, the Philippine Coast Guard has become the third armed force under the Ministry of Transport, after the armed forces and the police (Philippine Coast Guard, 2023). Indonesian maritime law enforcement is carried out by the Coast Guard and the Maritime Safety Authority. The former is subordinate to the Ministry of Transportation; the latter is considered a paramilitary force and subordinate to the Coordinating Ministry for Political, Legal, and Security Affairs (Arif, 2017).

From a historical perspective, the status of the CCG has undergone two major changes. The first change occurred on July 22, 2013, when the CCG was officially established. According to the Transformation Plan of the Agencies and Functions of the State Council, the personnel and functions of the CCG were integrated with the former Maritime Surveillance of State Oceanic Administration, the Coast Guard of the Ministry of Public Security, the Chinese Fisheries Administration of the Ministry of Agriculture, and the Customs Anti-contraband Policemen (State Council, 2013). After this round of reform, the CCG, which is under the management of the State Oceanic Administration, accepted the operational technical guidance of the Ministry of Public Security. The status of the CCG as an administrative law enforcement agency was assured. The second change occurred in 2018 when the CCG was affiliated with the Armed Police Force. According to the Decision of the Standing Committee of the National People’s Congress on the Exercising of the Marine Right Safeguarding and Law Enforcement Functions and Powers by the CCG (hereinafter referred to as the Decision), the tasks of the CCG remain the same, but the management and command system will be transferred to the Armed Police Force (National People’s Congress, 2018). Since then, the CCG has no longer belonged to the State Council system and has officially become an integral part of the Armed Police Force and will now be under the unified command of the Central Military Commission (Chang & Li, 2019). To further clarify the dual nature of the CCG agency, Article 2 of the CCG Law (Draft) stipulates, ‘The CCG shall be an important maritime armed force and national administrative law enforcement force’ (CCG Law [Draft], 2020). This article was altered when the CCG Law was adopted, ‘The CCG units of the People’s Armed Police Force, to wit, CCG agencies, shall uniformly perform the duties of maritime rights protection and law enforcement’ (CCG Law, 2021). The Constitution and Law Committee of the National People’s Congress explained that the article was changed to be more closely related to the legislative purpose of regulating the unified performance of maritime rights protection and law enforcement by the CCG agency and clarifying its duties and tasks, besides considering the connection with the Chinese Armed Police Law (The Constitution and Law Committee of the National People’s Congress, 2020). Articles 2 and 9 of the Chinese People’s Armed Police Law provide that the CCG is an integral part of the Armed Police Force and an important element of the Chinese armed forces (Chinese People’s Armed Police Law, 2020).

In terms of domestic law, the CCG agency needs to examine its legal responsibilities and obligations in order to determine its nature. The responsibilities of the CCG can be divided into two situations: peacetime and wartime. Concerning duties in wartime, Article 83 of the CCG Law stipulates that the CCG mainly performs defensive combat tasks (CCG Law, 2021). Regarding duties during peacetime, Article 2 of the CCG Law summarizes them as encompassing both maritime rights protection and law enforcement; in particular, this article refers to activities such as boarding, inspection, arrest, and detention performed by entities with domestic law authorization to safeguard national maritime rights, national security, or the common interests of mankind (Chang, 2021). Specifically, maritime rights protection broadly includes safeguarding national sovereignty and maritime rights and interests. Law enforcement can be understood as the implementation of the powers of administrative agencies stipulated in laws; this implementation can encompass the development and use of marine resources, protection of the marine ecological environment, management of marine fisheries, and combating smuggling at sea. Law enforcement is a manifestation of the CCG’s performance of its duties as an administrative agency, and there is little controversy on this situation. Article 12 of the CCG Law stipulates that the agency is charged with ‘patrolling and doing guard duty in the areas under the jurisdiction of China, guarding key islands and reefs, managing and maintaining maritime boundaries, and preventing, stopping, and eliminating acts that endanger national sovereignty, security, and maritime rights and interests’ (CCG Law, 2021). These actions should be seen in the context of law enforcement. Thus, the concept of rights protection is extensive, and its objects always have foreign-related factors. Will the nature of the CCG’s activities change if it involves forcible measures or even the use of force in law enforcement?

Indeed, the questions raised about the dual nature of the CCG agency reflect how maritime rights protection activities should be characterized. First, the UNCLOS lacks a clear definition of and distinction between military and law enforcement activities. According to Article 298 of the UNCLOS (which also calls for the provision of ‘military activity exception’), the UNCLOS does not define military activities at sea. It mentions military activities in Article 298(1)(b), which stipulates ‘…military activities, including military activities by government vessels and aircraft engaged in noncommercial service…excluded from the jurisdiction of a court or tribunal under Article 297, Paragraph 2 or 3’ (UNCLOS, 1982). We can conclude that military activities and law enforcement activities are two parallel but different activities. The 1975 Informal Single Negotiating Text made a reservation in the dispute regarding military activities. It argued that ‘military activities do not include law enforcement activities carried out in accordance with the UNCLOS’ (Informal Single Negotiating Text, 1975), while some scholars believe that the participation of the navy in maritime law enforcement activities is a non-military use in peacetime (Churchill & Lowe, 1999). Second, the fact that the CCG has military attributes does not necessarily mean that its ship is a warship. Article 29 of the UNCLOS defines a warship as ‘a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the state and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline’ (UNCLOS, 1982). In the 2018 reform of the CCG, not all staff were made members of the Armed Police Force; some of them are still civil servants, nor did China put its CCG ships on the navy’s list of vessels. Therefore, in terms of the nature of a CCG ship, it is still a ‘government ship operated for noncommercial purposes’ under Article 31 of the UNCLOS. Finally, based on international judicial practice in recent years, the distinction between law enforcement activity and military activity is not based solely on the nature of the subject. The distinction between warships and law enforcement ships is also based on their traditional functions, which have gradually become blurred as countries often use these two types of ships to perform different missions (ITLOS, 2019). The key to distinguishing whether maritime rights protection belongs to law enforcement or military activities lies in the objective assessment of the facts. Generally, it includes such factors as the basis and purpose of the activity, the state of the foreign vessels involved, and the sea area involved. In other words, for different violations and targets, the CCG has different law enforcement goals, and their methods and procedures are not consistent either. Therefore, it is impossible to define maritime rights protection activities uniformly in law. Specific cases must be examined to make a decision.

In summary, the adoption of the CCG Law and the reform of the CCG have not changed the basic functions of the agency. The CCG is a national administrative agency tasked with safeguarding maritime rights and interests and enforcing the law of the sea. In addition, while improving its law enforcement and operational capabilities, it is gradually strengthening its capability for a wartime role. The practice of international law shows that the nature of personnel and ships does not define the nature of activities. Discussions about the nature of the CCG should be based on complex maritime rights protection situations and the general characteristics of the CCG agencies in major countries. The main responsibilities of the CCG are maritime rights protection and law enforcement. Military responsibilities such as defense operations are subsidiary duties. These two responsibilities are performed in peacetime and wartime, respectively, which is not contradictory, and this is also in line with the common practice of the current international community.

5 Suggestions for implementation of the CCG Law

The CCG Law is not only a piece of domestic legislation in the Chinese maritime law enforcement field; it also contains many innovations and developments in the context of the UNCLOS. At the same time, some provisions of the CCG Law are consistent with China’s long-standing maritime claims and practices, and there are some misunderstandings in the international community. Therefore, further development and improvement of the CCG Law is very important. Some priorities are highlighted below. First, ‘maritime rights protection and law enforcement’ is the core concept of the CCG Law. However, understanding and applying this concept accurately remains challenging. The above discussion on the ‘International Concern Provisions’ of the CCG Law is largely related to the interpretation and application of the ‘maritime rights protection and law enforcement’ concept. Some Chinese scholars call it ‘rights protection abroad and law enforcement at home’ (Li, 2023). The concept first appeared in the ‘China Maritime Administrative Law Enforcement Bulletin’ (hereinafter referred to as the ‘Bulletin’) issued by the State Oceanic Administration in 2002, which highlighted that the ‘China Marine Surveillance has carried out maritime rights protection and law enforcement on emergency incidents in areas under the jurisdiction of China, in particular, it has tracked, monitored and driven away foreign vessels engaged in the laying of submarine electrical or optical fiber cables and pipelines and oceanographic surveys without approval’ (State Oceanic Administration, 2002). This paragraph was located in the ‘Safeguarding National Maritime Rights and Interests’ section of the Bulletin and was in parallel with other sections such as ‘Administration of the Use of Sea Areas’ and ‘Marine Environmental Protection’. It is obvious that when the concept of ‘maritime rights protection and law enforcement’ first appeared, it only referred to law enforcement, supervision, and emergency response activities against foreign vessels entering China’s waters; notably, it did not include general administrative law enforcement activities. After the adoption of the 2018 Decision, ‘maritime rights protection and law enforcement’ became a formal legal term in the context of China’s domestic law. This expression was not used in any coast guard legislation of the world’s major maritime states, which reflects China’s demand for the protection of national maritime rights and interests.

Second, it is important to clarify the connotation of ‘maritime rights protection and law enforcement’ in different areas under the jurisdiction of China. Coastal states’ jurisdiction in these sea areas should be classified and distinguished according to international and domestic laws (Yuan, 2017). According to the UNCLOS and Chinese domestic law, the CCG’s ‘maritime rights protection and law enforcement’ authority varies in areas under Chinese jurisdiction (Table 1). According to Article 82 of the CCG Law, the CCG is entitled to formulate regulations on matters concerning maritime rights protection and law enforcement. This could further clarify the authority and duties of the CCG in different jurisdictional areas and elucidate the focus of disputes in practice, that is, the boundary of the right of foreign vessels to freedom of navigation, and reduce law enforcement disputes as well as armed conflicts caused by conflicting understanding of the CCG Law.

Third, Article 15 of the CCG Law stipulates that the CCG and its sea area bureaus shall ‘coordinate and guide the law enforcement work of the maritime law enforcement teams of the coastal local people’s government related to waters use, island protection and development, marine ecological and environmental protection, and marine fishery administration, among others’. However, in practice, these specific guidance mechanisms are absent. Many local pieces of legislation dealing with the above issues are based only on the administrative bodies of their respective administrative regions and fail to include CCG agencies. Therefore, to overcome the lack of detailed provisions of the CCG Law, relevant supporting legislation needs to be improved. For example, the State Council will formulate the ‘Rules or Regulations for the Implementation of the CCG Law’ to further supplement the interpretation of the CCG Law.

Finally, in addition to regulating the legal status of the CCG, the CCG Law also involves civil, criminal, military, and other multiple legal relationships. One of the critical questions is how to connect the law effectively with China’s existing ocean governance legal system. The lack of effective connection may engender a dilemma of choice and application of the law. Therefore, existing sea-related legislation must be integrated and revised to ensure the consistency of relevant laws and regulations with the CCG Law. Many of China’s domestic laws contain provisions concerning the CCG’s authority and duties, such as Criminal Procedure Law, Fisheries Law, Customs Law, Administration of Sea Areas Law, Marine Environment Protection Law, and Island Protection Law (Table 2). These laws need to be further revised and improved. The establishment of the maritime rights protection legal system should be based on the following two principles: ensuring the effective application of the CCG Law and safeguarding the policy space and regulatory power of the government effectively. In this regard, Article 4 of the newly amended Chinese Marine Environmental Protection Law in 2023 has played an important model role. This article states that the CCG will ‘conduct the supervisory inspection of marine construction projects, pollution damage caused to the marine environment by wastes dumped into the sea, and the protection and utilization of the seaward side of the coastline of nature reserves, and other activities within the scope of its duties, investigating and punishing violations, and participating in the contingency response to and investigation and handling of marine environmental pollution accidents in accordance with the prescribed authority’ (Chinese Marine Environment Protection Law, 2023).

Table 2 Chinese domestic laws contain provisions concerning the CCG’s authority and duties
Full size table

6 Conclusions

The implementation of ‘International Concern Provisions’ of the CCG Law has prompted much discussion in the international community. However, through the analysis of the above articles, we can conclude that the CCG Law does not violate China’s international obligations under the UNCLOS and the basic principles of international law. The ‘areas under the jurisdiction of China’ in the CCG Law include not only the sea area explicitly regulated by the UNCLOS but also the types of sea areas other than those regulated by the UNCLOS that are governed by the rules and principles of general international law, such as historical waters; since Article 25(1) of the UNCLOS does not specify the content of ‘the necessary steps’, Article 21 of the CCG Law further interprets and refines the above provisions. That is, the CCG can take countermeasures such as ‘forcible expulsion and forcible ejection by towing’ against serious illegal acts of foreign military vessels or government vessels within Chinese territorial waters. In principle, the CCG will not take forcible measures against foreign military vessels or government vessels for noncommercial purposes that violate laws and regulations in sea areas beyond China’s territorial sea unless their conduct constitutes an urgent threat to Chinese sovereignty, security, and maritime rights and interests; The CCG is both an armed force and an administrative law enforcement agency; it is in accord with the development trend of coast guard agencies in other East Asian countries. As for its functions, the CCG mainly performs administrative law enforcement tasks, military tasks, and defense operations only in specific situations.

At the same time, in the process of implementing the CCG Law, China needs to further develop and perfect the concept of ‘maritime rights protection and law enforcement’, ‘areas under the jurisdiction of China’, and ‘forcible measures against illegal acts of foreign warships and government vessels’ through domestic legislation and revision, and enrich and promote the development and improvement of international law theories and international rules with innovative national practices. As the game of international maritime order is becoming increasingly fierce, China also needs to respond to international public concerns and do better in interpreting and applying the CCG Law. The CCG has to strengthen international cooperation in maritime law enforcement with the concept of ‘extensive consultation, joint contribution, and shared benefits’, in particular, staying in close contact with relevant countries, exchanging views on maritime situations and coordinating maritime operations, intensifying the standardization of law enforcement, enhancing the agency’s ability to perform duties in accordance with law, and promoting global ocean governance.