Published by The Lawfare Institute
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Thursday's high-level meeting between American and Chinese diplomats in Alaska confirmed that for the foreseeable future, “competition” will be the defining paradigm in U.S.-China relations. But the meeting also highlighted that the two sides are seeking to identify areas where cooperation can proceed alongside competition. One area that Washington and Beijing might look to is updating bilateral risk reduction and crisis management mechanisms. It’s a particularly ripe sphere for modest, practical steps the two governments can pursue to promote safety and prevent miscalculation in waters where their forces are increasingly operating in proximity. Closing the loopholes that currently leave some of the most important players out of existing safety protocols would be a useful first step.
Maritime Crisis Management and China’s “White Hulls” and “Blue Hulls”
Amid an increase in the frequency and intensity of Chinese and American military operations in maritime East Asia, an array of commentators have argued that there is an urgent need for the United States and China to work together to improve bilateral crisis avoidance and communication mechanisms. Nowhere is this need more evident than in the contested waters of the South China Sea and East China Sea. The recent history of U.S.-China military dialogues offers little cause for optimism about the potential for a near-term breakthrough.
Nonetheless, the Biden administration has an early opportunity to test the sincerity of China’s professed desire to prevent and manage the risks of conflict. As an initial good-faith step, Washington and Beijing should work to supplement existing maritime safety protocols to include non-naval vessels such as coast guards and maritime militias.
Recent legal developments related to the Chinese Coast Guard (CCG) have brought this issue to a head. On Jan. 21, Beijing passed a law that authorizes the Chinese Coast Guard to use “all necessary measures” to prevent foreign organizations and individuals from violating, or posing an “imminent danger” of violating, China’s “sovereignty, sovereign rights, and jurisdictional rights.” This is the first time China has spelled out in law the conditions under which its coast guard can fire weapons on foreign vessels. The new law permits the coast guard to use force under prescribed circumstances to defend China’s “jurisdictional waters” (管辖海域)—a deliberately ambiguous term that likely encompasses China’s ill-defined claims over nearly 80 percent of the waters in the South China Sea.
The new law also specifically authorizes the CCG to remove structures built by other countries on land features (natural or manmade) claimed by China. The law empowers the CCG to board and inspect foreign vessels in waters claimed by China and to create temporary exclusion zones in a broad range of circumstances to prevent ships and personnel from entering these areas. As Shigeki Sakamoto has written, the Coast Guard Law clarifies that “the CCG is an organization with the dual functions of a navy conducting defense operations in waters under its jurisdiction (military activities) and a maritime law enforcement agency (law enforcement activities).”
The Coast Guard Law also implicitly concedes what American officials have long argued: Maritime accidents and encounters involving the threat or use of force are at least as likely to arise from the operation of China’s coast guard as from its naval vessels. And it’s not just the Coast Guard and the Navy. China’s People’s Armed Forces Maritime Militia (PAFMM) raises similar concerns given its function as an armed reserve force that assists the People’s Liberation Army Navy (PLAN) and the CCG in enforcing China’s sovereignty claims. As China doubles down on these enforcement activities, all signs point to a growing role for so-called “white hull” coast guards and “blue hull” maritime militias in addition to “gray hull” naval vessels.
The CCG has expanded rapidly since 2010 to become the largest coast guard in the world. Its modernization has improved China’s ability to enforce its maritime claims. The CCG conducts regular presence operations in the vicinity of disputed features near the Senkaku Islands and deploys rapidly in response to perceived infringements on Chinese maritime claims, such as Vietnamese and Malaysian hydrocarbon drilling operations. In July 2018, the CCG came under the control of the paramilitary People’s Armed Police, which answers to China’s Central Military Commission. According to the U.S. Department of Defense, the CCG is “responsible for a wide range of missions under the umbrella of maritime rights protection, including enforcement of the PRC’s sovereignty claims, surveillance, protection of fisheries’ resources, anti-smuggling, and general law enforcement.”
There is nothing inherently improper about a coast guard exercising law enforcement powers that may include the use of force. But the CCG is frequently and intensively deployed in disputed waters, encroaching on what other nations see as their sovereignty. The result is often confrontation. Analysis by the Center for Strategic and International Studies indicates that “of the 70 major incidents identified in the South China Sea from 2010 onward, at least one Chinese maritime law enforcement vessel was involved in 73 percent of incidents.”
It is thus unsurprising that the enactment of the PRC Coast Guard Law set off alarm bells among China’s neighbors. The Philippines’s foreign secretary tweeted that the law “is a verbal threat of war to any country that defies the law,” and that leaving the law “unchallenged” would be tantamount to “submission.” The Philippines’s top military commander announced he was ordering the deployment of additional assets to the South China Sea to protect Filipino fishermen in response to the law’s enactment. Vietnam, which has been fortifying its bases in the South China Sea and is considering filing an international arbitration against China, pointedly vowed to “resolutely and persistently take measures in accordance with international law to defend [its] legal, legitimate rights” in the Spratly and Paracel islands. Taiwan’s envoy to the United States called for "high alert" over Beijing's maritime coercion in the wake of the Coast Guard Law. And some countries have argued that the law has already yielded more aggressive CCG maneuvering. On Feb. 16, two CCG vessels reportedly entered disputed waters near the Senkaku Islands, prompting Japan to lodge a protest over repeated incursions following enactment of the PRC Coast Guard Law.
The United States has joined this growing chorus of concern. In a Feb. 19 press briefing, U.S. State Department spokesperson Ned Price stated that “the United States joins the Philippines, Vietnam, Indonesia, Japan, and other countries in expressing concern with China’s recently enacted Coast Guard Law, which may escalate ongoing territorial and maritime disputes.” He specifically highlighted provisions that link the use of force to enforcement of China’s territorial and maritime claims, noting that the wording of the law “strongly implies” that it “could be used to intimidate the PRC’s maritime neighbors.”
These concerns have been accompanied by actions. In just its first month, the Biden administration oversaw freedom-of-navigation operations in the Spratly and Paracel islands, a Taiwan Strait transit, and dual-carrier strike group exercises in the South China Sea. Increasingly, such exercises and operations are being conducted with partner forces, including members of the “Quad” (Australia, India, Japan and the United States) and European allies such as France and Germany.
Time to Expand Risk Reduction Mechanisms
In a context of growing risks to maritime security and stability, can the United States and China cooperate to lower the chances that an accident at sea spirals out of control?
Recent history provides evidence both for and against this proposition. In 2014, the United States and China committed to the multilateral Code for Unplanned Encounters at Sea (CUES), a non-binding protocol that sets forth safety procedures, communications methods and maneuvering instructions for naval ships and aircraft during unplanned encounters. CUES supplements the “Collision Regulations” (COLREGS) contained in the 1972 Convention on the International Regulations for Preventing Collisions at Sea, a binding treaty to which both China and the United States are parties. The two countries later signed memoranda of understanding on notifications of major military activities and rules of behavior for safety of air and maritime encounters. The maritime safety MOU specifically references and incorporates CUES and COLREGS. Although not always followed in practice, these agreements suggest China and the U.S. recognize a mutual interest in shared safety procedures that reaffirm their binding legal obligations but specify the manner in which they will implement those obligations to deconflict their forces.
Despite this apparent progress, CUES and the maritime safety MOU do not expressly apply to coast guard vessels or to China’s armed fishing militia. As Andrew Erickson has explained, China uses these non-naval vessels for “gray zone operations against vessels from its maritime neighbors, as well as the U.S., at a level designed to frustrate effective response by the other parties involved.” These types of vessels are deployed to assert and defend China’s expansive maritime claims “more regularly and extensively than its navy.” Erickson and Connor Kennedy have shown that the PAFMM, which includes both fishing vessels and purpose-built vessels designed to look like fishing vessels, is organized and commanded by the PLA’s local military commands. Given the high percentage of incidents involving these forces, the absence of a CUES-like arrangement for non-naval vessels is a glaring weakness in the regional maritime safety regime.
Why has Beijing resisted calls to expand CUES or devise supplemental protocols for its non-naval vessels? Part of the answer may lie in Chinese officials’ broader suspicion of negotiations over “crisis management” and “risk reduction.” Participants in official and quasi-official U.S.-China crisis management dialogues have indicated that Chinese interlocutors often perceive the U.S. objective in these discussions as limiting China’s freedom of maneuver. By this logic, China’s commitment to clear “rules of the road” for its coast guard and maritime militia would sacrifice a gray-zone advantage without reciprocation, since most U.S.-China maritime encounters in China’s near seas involve U.S. Navy vessels. Scholars such as Peter Dutton and Lynn Kuok have demonstrated that China is highly effective in utilizing non-militarized coercion tools. Beijing has not been keen to give up these tools, which it sees as incurring limited escalation risks with neighboring countries.
In addition, some Chinese military analysts may see military crises as potential opportunities for China to advance its strategic interests and consolidate its sovereignty claims. It would be an overstatement, however, to claim that the Chinese military establishment relishes crises. As Alastair Iain Johnston has explained, many PLA thinkers are highly sensitive to the destabilizing risks of military crises, but they may also see opacity and ambiguous signaling as a source of crisis stability and deterrence insofar as it elicits caution from an uncertain adversary.
Some of these premises may be shifting. The United States has signaled an intent to bolster the role of the U.S. Coast Guard (USCG) as part of an integrated maritime strategy focused on strategic competition with China. In October 2020, U.S. National Security Advisor Robert O’Brien announced that the USCG is “strategically homeporting significantly enhanced Fast Response Cutters ... in the western Pacific” for maritime security operations with “regional partners who have limited offshore surveillance and enforcement capacity.” The “Advantage at Sea” Tri-Service Maritime Strategy published by the Navy, Marine Corps and Coast Guard in December 2020 notes that the Coast Guard’s mission makes it “the preferred maritime security partner for many nations vulnerable to coercion” and that integrating USCG authorities with the other naval services “expands the options we provide to joint force commanders for cooperation and competition.”
The December strategy document further notes that U.S. Navy and Coast Guard ships conduct freedom of navigation operations globally to challenge illegal maritime claims and that “Coast Guard forces provide additional tools for crisis management through capabilities that can de-escalate maritime standoffs nonlethally.” Integrating and modernizing U.S. joint forces is seen as an essential response to China’s deployment of a “multilayered fleet” designed “to subvert other nations’ sovereignty and enforce unlawful claims.” American defense analysts have similarly argued that the USCG is “uniquely positioned” to address China’s excessive maritime claims, island-building, illegal fishing and other activities of concern.
Putting this approach into action, USCG cutters have recently conducted joint exercises with partners in the Indo-Pacific and have participated in an increasingly broad range of operations in the region.
The growing presence of U.S. and allied coast guard vessels in these contested waters underscores the importance of clear rules of the road for all sea forces to reduce and manage operational risks. In theory, such rules already exist in the form of COLREGS, which (unlike CUES) applies to all vessels—military and non-military alike—and is binding on China, the United States, and every country bordering the South China Sea and East China Sea. But CUES and the U.S.-China maritime safety MOUs provide more detailed guidelines that naval strategists believe are valuable for deconfliction of forces operating in close proximity. China’s Coast Guard Law implicitly acknowledges that interactions involving non-naval vessels can be escalatory, further highlighting the need to strengthen these deconfliction protocols.
This is not to suggest that CUES has been a silver bullet for safe interactions between U.S. and Chinese naval vessels. Nor could a supplemental protocol that applies to “white hulls” and “blue hulls” resolve the deeper maritime security tensions between China and the United States or other countries. But a CUES-type document for non-naval vessels could serve as a useful building block, especially if accompanied by a commitment that representatives of coast guards and maritime militia forces will actively participate in bilateral risk reduction and crisis communication talks going forward. The United States could demonstrate reciprocal good faith by subjecting its own coast guard to these safety rules and encouraging U.S. allies and partners in the region to do the same.
It is difficult to assess the near-term feasibility of this proposal, but it bears noting that China and the United States have made progress on this issue before. In September 2016, China’s Xinhua news agency reported that the PRC Ministry of Defense had completed a second round of talks with the United States on signing a “China-U.S. Coast Guard Code of Safe Behavior for Maritime Encounters” (中美海警海上相遇安全行为准则). This news followed a March 2016 meeting in which Chinese Foreign Minister Wang Yi was reportedly receptive to his Singaporean counterpart’s proposal to expand CUES to cover coast guards. In recent years, prominent Chinese experts such as Wu Shicun have expressed support for similar ideas. Luo Shuxian has noted that doing so in the wake of the Coast Guard Law would be a logical step that echoes a similar move taken by the United States and Soviet Union in 1973. And Chinese participants in crisis management dialogues and simulation exercises have proposed additional U.S.-China MOUs covering frontline forces.
Managing Competition, Not Solving It
To be clear, this simple update to existing rules should not be viewed as a Chinese concession to be anxiously bargained over. Numerous Chinese experts have argued that strengthening risk reduction mechanisms and communication channels is critically important for China’s own interests. For dialogues on these mechanisms to be effective, they should focus on operational safety and avoid getting bogged down in grievances over differing legal and policy positions.
In an echo of the Chinese government’s erstwhile bid for a “new type of great power relationship” between China and the United States, Chinese defense officials have sought to cast the dawn of the Biden administration as a “new historical starting point” for Sino-U.S. military relations. Washington will be rightly skeptical of such rhetoric, which rings hollow to U.S. officials familiar with Beijing’s past efforts to “change the soup but not the medicine.” Moving forward, the focus in talks between the two countries must shift to achieving concrete outcomes that diminish the potential for miscalculation. A Sino-U.S. commitment to applying clear mutual safety procedures to all sea forces would be a small step toward building the confidence needed to address larger challenges such as the deployment of new capabilities in military robotics and artificial-intelligence-enabled vessels and weapons systems.
The goals of bilateral maritime risk reduction should not be held hostage to broader U.S.-China disagreements. Like their naval counterparts, coast guards and maritime militias should be subject to clear procedures for safe encounters at sea. Reaching this understanding would be a small but meaningful step toward proving that Beijing and Washington can achieve a manageable equilibrium of “competition without catastrophe.”