TOPIC: China Coast Guard Regulation No. 3

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Prepared by: USINDOPACOM Joint Operational Law Team (INDOPACOM.J06.OPLAW@pacom.mil)

Last Updated: 30 May 2024 (all prior versions obsolete)

**This TACAID includes legal opinion and analysis that does not necessarily reflect official U.S. government positions

USINDOPACOM J06/SJA TACAID SERIES

TOPIC: China Coast Guard Regulation No. 3

BOTTOM LINE

 China Coast Guard (CCG) Regulation #3 raises significant legal concerns.

 The regulation is set to take effect on 15 June 2024 and will authorize CCG commanders to detain foreign vessels

and persons in “waters under China’s jurisdiction” for up to 60 days.

 Moreover, the regulation appears to implement the 2021 CCG Law, and therefore suffers from the same legal

deficiencies as the 2021 CCG Law, including vague language on geographic application (e.g., “waters under

China’s jurisdiction”) and the potential to use force (e.g., “other law enforcement actions”).

 Concern regarding the scope of geographic application is underpinned by the legally baseless dashed-line claim

within which the People’s Republic of China’s (PRC) asserts “indisputable sovereignty.”

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 The PRC’s sweeping maritime and territorial claims across the South China Sea provide pretext for unlawful

enforcement of CCG Regulation #3 on the high seas and in foreign exclusive economic zones (EEZ) where all

nations enjoy high-seas freedoms of navigation, overflight, and other lawful uses of the sea.

 CCG Regulation #3 is the latest example of the PRC’s increasingly assertive behavior coupled with its use of

domestic law and regulation as an instrument of coercion.

WHY THIS MATTERS

 CCG Regulation #3’s potential to escalate regional tensions, infringe on coastal state sovereign rights, and impede

high-seas freedoms guaranteed to all nations makes it a matter of significant international concern

 CCG regulation #3 is a vehicle for the PRC to impose domestic jurisdiction on foreign flagged vessels and foreign

persons beyond its lawful territorial sea, and possibly across the entirety of its sweeping maritime claims.

 Implementation of the regulation would be escalatory and

detrimental to regional peace and security.

 The PRC could use the 2021 CCG Law and CCG Regulation #3 to

justify continued and increasingly forceful interference with

lawful activities by the Philippines in the Philippine EEZ.

 The regulation’s vague language on fisheries enforcement in

“important fishery waters” coupled with the PRC’s annual

fishing moratorium across the South China Sea increases

uncertainty for coastal states that rely on fisheries rights for

economic sustenance.

 CCG Regulation #3 does not exempt warships and other

sovereign immune vessels from its scope, leaving open the

possibility of enforcement against public vessels in a manner

contrary to international law.

 If the PRC’s use of domestic law and regulations as an

instrument of coercion is left unchallenged, the PRC could be

emboldened to take further coercive action against the

Philippines and other countries.

 The PRC’s disregard of the binding 2016 Arbitral Tribunal

award and customary international law reflected in the United Nations Convention on the law of the Sea

(UNCLOS) threatens the rule of law across the region.

 Upholding international law is fundamental to the rules-based international order that benefits all nations.

Images: A CCG vessel deploys blocking maneuvers

and water cannons on a Philippine resupply vessel

as it approached Second Thomas Shoal.

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DETAILED DISCUSSION

 The CCG Bureau was established in March

2013 by consolidating four maritime law

enforcement agencies.

 In July 2018, the Bureau was transferred to

the Peoples Armed Police Force under the

unified command of the Central Military

Commission. It now consists of the North, East

and South China Sea Sub-bureaus.

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 After the 2018 reorganization, collaboration

increased between the People’s Liberation

Army (PLA) and the CCG in terms of

organization, personnel, and equipment, as

evidenced by the transfer of retired PLA Navy

ships to the CCG and appointment of former

PLA Navy officers to major CCG positions.

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 The CCG now has more than 200 vessels and

aircraft (fixed-wing and rotary-wing).

 Enactment of the CCG Law in January 2021

exemplified and reinforced the CCG’s growing strength, militarization, and forward posture.

 The CCG Law contains ambiguous and undefined language on the scope of geographic application and authority

to use weapons, among other problematic provisions.

 On 15 May 2024, the CCG announced that CCG Regulation #3 (i.e., “Decree No. 3” or the “Regulations on

Administrative Law Enforcement Procedures for Coast Guard Agencies”) would come into effect on 15 June 2024.

 The new regulation appears to implement the 2021 CCG Law.

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 According to the PRC’s

Ministry of Foreign Affairs,

the purpose of the

regulation is to standardize

administrative law

enforcement procedure

and build on two criminal

procedure regulations

issued in 2023.

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 The new regulation is the

first known CCG policy

that explicitly authorizes

detention of foreign

vessels and individuals for

“trespass” in “waters

under China’s

jurisdiction.”

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 News of the regulation broke with the arrival of a 100-boat convoy of Philippine civilians on 15 May 2024 at

Scarborough Shoal. The convoy reportedly delivered food and fuel to Philippine fisherman and installed buoy

markers despite the presence of CCG, maritime militia, and PLA Navy vessels.

1. Background

Image: Screenshot of the CCG’s 15 May 2024 announcement of CCG regulation #3

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 The new regulation consists of 92 pages, 16 chapters, and 281 articles. While some of the 281 articles are

administrative in nature, articles 11, 35, 105, 257, 263, and 266 present a more troubling picture.

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 Articles 11, 105, 257, and 266 function together to authorize the CCG to detain foreign vessels and persons.

o Article 11 outlines broad CCG jurisdiction over “administrative cases” involving an “illegal violation” in

waters considered to be “under the

jurisdiction of our country [PRC].” Such

waters are not defined in the

regulation or in the 2021 CCG Law.

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o Article 105 describes CCG authority to

detain foreign ships that illegally enter

“territorial waters” [“territorial waters”

are not defined in the regulation or in

the 2021 CCG Law].

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o Article 257 outlines the circumstances,

offenses, and length of time that the

CCG can detain foreign nationals for

“violating exit and entry management.”

The article authorizes detention if

“further investigation is required,”

subject to approval by the cognizant

CCG area commander. The article lists

offenses for which foreign nationals

can be detained, including “illegal entry

and exit into the country [China]”;

“assisting others to illegally exit and

enter the country”; and “endangering

national security interests, disrupting

social and public order, or engaging in

other illegal and criminal activities.”

Detention up to 60 days may be

authorized if the case is

“complicated.”

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o Article 266 requires the responsible

“CCG organ” to provide specific

information on detained foreign

nationals and vessels, such as name,

sex, identity documents, the ship’s registration, name, the case’s circumstances, and the legal basis for

detention to higher headquarters. The provincial-level CCG bureaus are required to notify the relevant

diplomatic mission and “foreign affairs department” of a foreign national’s detention within 48 hours.

 Article 35 implements Article 25 of the 2021 CCG Law, which authorizes the CCG to “delimit temporary maritime

security zones,” including for “military use of the sea” and “safety and use of maritime military facilities.”

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 In addition to restating the purposes for establishing maritime security zones listed in the CCG Law, Article 35

authorizes establishing maritime security zones “involving important fishery waters” if related to “fishery

production operations.”

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 Article 263 purports to prohibit “unauthorized” surveying and mapping in “waters under China’s jurisdiction,”

and warns that such circumstances are considered “grave or serious.”

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 CCG Regulation #3 does not exempt warships and other sovereign immune vessels from its scope or

acknowledge the doctrine of sovereign immunity under international law.

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 The regulation does not specifically address the use of weapons like the 2021 CCG Law, but it does expressly

reference the CCG Law and use vague language on authorized activities (e.g., “other law enforcement actions”)

that could be construed to encompass the use of force in accordance with the CCG Law.

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Translation of Article 11. Source: Atlas News

Translation of Article 266. Source: Atlas News

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 The timing of the CCG’s announcement may be intended to intimidate the Philippines from exercising

navigational rights and freedoms in its EEZ, particularly near Second Thomas Shoal and Scarborough Shoal.

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o A Philippine government official responded to CCG’s issuance of the regulation by condemning “China’s

blatant escalation of tensions in the West Philippine Sea.”

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o The Philippines Department of Foreign Affairs said that,

“the regulations are issued on the basis of the 2021

Coast Guard law which also illegally expanded the

maritime law enforcement powers of China’s Coast

Guard. China would be in direct violation of international

law should it enforce these new regulations in the

waters and maritime features within the illegal, null and

void, and expansive 10-dash line, which would

effectively cover areas of the West Philippine Sea where

the Philippines has sovereignty, sovereign rights and

jurisdiction, or in the high seas.”

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o See USINDOPACOM’s TACAID page for more information

on events surrounding Second Thomas Shoal.

 The PRC’s sweeping maritime and territorial claims presage

potential unlawful enforcement of CCG Regulation #3 on the

high seas and in foreign EEZs where all nations enjoy freedoms

of navigation, overflight, and other lawful uses of the sea.

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o In submitting its legally baseless dashed-line claim to

the UN General Assembly in 2009, the PRC declared that

it has “indisputable sovereignty over the islands in the

South China Sea and the adjacent waters, and enjoys

sovereign rights and jurisdiction over the relevant waters

as well as the seabed and subsoil thereof.”

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o In 2013, the Philippines exercised its right under UNCLOS to seek legal arbitration to contest the PRC’s

claims. The Permanent Court of Arbitration (Arbitral Tribunal) firmly and unanimously rejected the PRC’s

claims in 2016.

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o The Arbitral Tribunal found that PRC’s

claims to “historic rights” or other

sovereign rights with respect to the

maritime areas of the SCS

encompassed by the so-called “nine-

dash line” are contrary to UNCLOS and

without lawful effect.

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Likewise, the

PRC’s dashed-line claim does not

provide a basis for any entitlement by

the PRC to exercise domestic law

enforcement jurisdiction.

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o Despite the binding Arbitral Tribunal

award, the PRC persists in perpetuating

its dashed-line claim and territorial

claims to maritime features.

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o In the Spratlys alone, the PRC’s claim to

sovereignty over “Nansha Qundao” (南沙群島) encompasses approximately 40 islands and 150 low-tide

elevations.

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Many of these features are in the Philippine EEZ.

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 CCG Regulation #3’s potential to escalate regional tensions, infringe on coastal state sovereign rights, and

impede high-seas freedoms guaranteed to all nations make it a matter of significant international concern.

o For example, the regulation could be used as pretext to enable the PRC to increase pressure on Japan in

2. Analysis

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relation to the Senkaku Islands; to deny Vietnamese or Malaysian sovereign rights in the EEZ; or to

enforce the PRC’s newly enacted excessive straight baseline claims in the Gulf of Tonkin.

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o The regulation’s ambiguous and broad language (e.g., “endangering national security and interests”)

provide a veil of flexibility for the CCG to detain foreign vessels and persons engaged in lawful activities

beyond the territorial sea of any state.

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o The failure to exempt warships and other sovereign immune vessels from the regulation’s scope leaves

open the possibility of enforcement against any nation’s public vessels in a manner contrary to the

doctrine of sovereign immunity under international law.

o The circumstances when force may be used under the 2021 CCG Law are left vague in the new regulation,

and thus will continue to fuel uncertainty and risk of miscalculation during maritime interactions.

o The regulation’s vague language on fisheries enforcement in “important fishery waters” coupled with the

PRC’s recent announcement of its annual fishing moratorium across the South China Sea increases

uncertainty for coastal states that rely on fisheries rights for economic sustenance.

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 Like all nations, the PRC enjoys freedoms of navigation, overflight, and other internationally lawful uses of the sea

in waters beyond the territorial sea of any state, but such freedoms must be exercised with due regard for the

rights of other states.

 CCG Regulation #3 is the latest example of PRC’s increasingly assertive behavior in the South China Sea.

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PROPOSED COUNTER-LAWFARE APPROACH

**This section offers a summary of suggested language and key points for incorporation into communication strategies**

 CCG Regulation #3 raises significant legal concerns. Enforcement would be highly escalatory and detrimental to

regional peace and security.

 CCG regulation #3 exemplifies the PRC's use of domestic law as an instrument to assert excessive maritime

claims that were unanimously rejected in the legally binding determination of the 2016 Arbitral Tribunal.

 The PRC's use of ambiguous and undefined language in CCG Regulation #3 affords flexibility for excessive

enforcement of Chinese domestic law in conflict with high-seas freedoms enshrined in international law.

 The PRC’s legally baseless dashed-line claim renders CCG Regulation #3 inconsistent on its face with customary

international law reflected in UNCLOS.

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 The PRC’s sweeping maritime and territorial claims across the South China Sea provide pretext for excessive

enforcement of CCG Regulation #3 on the high seas and in foreign EEZs where all nations enjoy freedoms of

navigation, overflight, and other lawful uses of the sea.

 The international community should expose and oppose any efforts by the PRC to unlawfully enforce domestic

jurisdiction under the guise of CCG Regulation #3.

 Upholding international law and the rules-based international order is an enduring interest for the international

community and one that is vital to peace, security, and prosperity throughout the region.

 Consistent with U.S. policy, USINDOPACOM unequivocally rejects the PRC’s sweeping and unlawful maritime

claims in the South China Sea, as determined by the Arbitral Tribunal’s legally binding decision in July 2016.

 The PRC’s disregard of the 2016 Arbitral Tribunal award and customary international law reflected in UNCLOS

threatens the rule of law across the region.

 The United States has urged the PRC – and all claimants – to comport their maritime claims with international

law as reflected in UNCLOS.

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 The PRC continues to undermine international law and the rules-based international order, as exemplified by its

coercion and intimidation in the South China Sea.

 USINDOPACOM supports and defends a free and open Indo-Pacific underpinned by peace, stability, and freedom

of the seas in accordance with international law.

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China’s Coast Guard Regulations on Administrative Law Enforcement Procedures for Coast Guard Agencies, https://ccg.gov.cn/mhenu/

Id. at Art. 2.

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United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas, No 143 Maritime Claims in the South

China Sea, available at https://www.state.gov/wp-content/uploads/2019/10/LIS-143.pdf

Id. See also U.S. DoS LIS No. 150, People’s Republic of China: Maritime Claims in the South China Sea, Jan. 2022, https://www.state.gov/wp-

content/uploads/2022/01/LIS150-SCS.pdf.

Supra note 1 at Art. 35. See Philippines protests China’s Annual Fishing Ban, Reuters, 26 May 2024, available at ttps://www.reuters.com/world/asia-

pacific/philippines-protests-chinas-annual-fishing-ban-2024-05-27/.

See https://www.mod.go.jp/en/d_act/sec_env/ch_ocn/index.html.

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Id.

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Id.

An English translation of the CCG Law is available at: https://www.airuniversity.af.edu/Portals/10/CASI/documents/Translations/2021-02-11

China_Coast_Guard_Law_FINAL_English_Changes from draft.pdf?ver=vrjG35ymdQsmid0NF66uTA=.

See https://amti.csis.org/how-chinas-coast-guard-law-has-changed-the-regional-security-structure/.

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Supra note 1 at Art 1. See also Joaquin Camarena, New Regulations Indicates China Will Detail Individuals Illegally Entering Maritime Territory, Atlas News, 20 May

2024, available at https://theatlasnews.co/latest/2024/05/20/new-regulations-indicates-china-will-detain-individuals-illegally-entering-maritime-territory/.

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Ministry of Foreign Affairs of the People’s Republic of China, 15 May 2024, available at https://www.mfa.gov.cn/mfa_eng/.

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Michael Punongbayan, China Coast Guard empowered to detain South China ‘tespassers’, The Philippine Star, 18 May 2024,

https://www.philstar.com/headlines/2024/05/18/2356034/china-coast-guard-empowered-detain-south-china-trespassers

Jim Gomez, 100-Boat Convoy of Filipino Fishers, Activists, Sets Sail to Disputed Shoal in South China Sea, https://time.com/6978216/philippines-boats-fishermen-

activists-south-china-sea/.

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China’s Coast Guard Regulations on Administrative Law Enforcement Procedures for Coast Guard Agencies, https://ccg.gov.cn/mhenu/.

xvii

Id. at Art. 11.

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Id. at Art. 105

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Id. at Art. 257

Id. at Art. 266

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Id. Art. 35

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Id.

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Id. at Art. 263.

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See U.S. Navy NWP 1-14M (“As a matter of customary international law, all State public property is protected against the exercise of jurisdiction or control by

another State under the doctrine of State immunity. All manned and unmanned vessels and aircraft owned or operated by a State—and used, for the time being—

only on government, noncommercial service are entitled to sovereign immunity under this doctrine. This means such vessels and all other U.S. Government public

property—wherever located—are immune from arrest, search, inspection, or other assertions of jurisdiction by a foreign State.”)

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Supra note 1 at Art. 1 and 2.

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Michael Punongbayan, China Coast Guard empowered to detain South China ‘trespassers’, The Philippine Star, 18 May 2024,

https://www.philstar.com/headlines/2024/05/18/2356034/china-coast-guard-empowered-detain-south-china-trespassers.

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Joaquin Camarena, New Regulations Indicates China Will Detail Individuals Illegally Entering Maritime Territory, Atlas News, 20 May 2024, available at

https://theatlasnews.co/latest/2024/05/20/new-regulations-indicates-china-will-detain-individuals-illegally-entering-maritime-territory/.

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See https://dfa.gov.ph/dfa-news/statements-and-advisoriesupdate/34766-dfa-statement-on-the-new-china-coast-guard-regulations.

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United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas, No 143 Maritime Claims in the

South China Sea, available at https://www.state.gov/wp-content/uploads/2019/10/LIS-143.pdf.

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PCA Case No 2013-19, In the Matter of The South China Sea Arbitration, 12 July 2016, available at http://www.pcacases.com/pcadocs/PH-CN%20-

%2020160712%20-%20Award.pdf.

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See generally id.

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Id. at ¶ 1203.

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Id. at ¶ 631.

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United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas, No 143 Maritime Claims in the

South China Sea, available at https://www.state.gov/wp-content/uploads/2019/10/LIS-143.pdf

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See generally U.S. Dep’t of State (DoS), Limits in the Sea (LIS) No. 143, China: Maritime Claims in the South China Sea, Dec. 5, 2014, https://www.state.gov/wp-

content/uploads/2019/10/LIS-143.pdf; U.S. DoS LIS No. 150, People’s Republic of China: Maritime Claims in the South China Sea, Jan. 2022,

https://www.state.gov/wp-content/uploads/2022/01/LIS150-SCS.pdf.

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Id.

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See USINDOPACOM TACAID on the PRC’s excessive straight baselines in the Gulf of Tonkin, available at https://www.pacom.mil/Contact/Directory/J0/J06-Staff-

Judge-Advocate/.

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Supra note 29.

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Supra note 5.

Supra note 30 at ¶ 741.

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U.S. Department of State, China’s Military Aggression in the Indo-Pacific Region, available at https://2017-2021.state.gov/chinas-military-aggression-in-the-indo-

pacific-region/#:~:text=Beijing%20uses%20intimidation%20to%20undermine,of%20access%20to%20their%20livelihoods.

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Article 89, Invalidity of Claims of Sovereignty over the High Seas, United Nations Convention on the Law of the Sea,

https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

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Congressional Research Service, China Primer: South China Sea Disputes, 21 August 2023, available at https://crsreports.congress.gov/product/pdf/IF/IF10607.