Submitted to the Senate Committee on National Defense and Security, Peace, Unification and Reconciliation, Committees on Foreign Relations, Public Works and Finance and Special Committee on Philippine Maritime and Admiralty Zones that are conducting public hearings on the West Philippine Sea by the International Law and Relations Society of the Philippines (ISIP), an intellectual society composed of retired Chief Justice of the Supreme Court Reynato S. Puno, retired CG Admiral Joel S. Garcia, Dr. Melissa Loja, Prof. Romel Bagares and Atty. Al Soriano.
Fifth of a series
What is the status of a coast guard in general?
What is the status of the CCG?
What about the Vietnamese Coast Guard (VCG) and the PCG?
IN the SCS Arbitration, the non-military vessels of China’s navy and coast guard were considered to have been engaging in military activities when they prevented a vessel of the Philippine Bureau of Fisheries from resupplying BRP Sierra Madre in Second Thomas Shoal. The military vessels of China were also in the vicinity. The Arbitral Tribunal cited the purpose of the Chinese vessels, which was to prevent the Philippines from asserting and protecting its territorial sovereignty over BRP Sierra Madre in a contested maritime zone.
The 2021 Coast Guard Law of the People’s Republic of China transferred supervision of the CCG from the Ministry of Land and Resources to the People’s Armed Police Force. At the same time, it placed the CCG under the disciplinary supervision of the Central Military Commission for certain offenses. It vested the CCG with both military and law enforcement functions, specifically patrolling China’s waters, defending its islands, reefs and artificial islands and designating maritime exclusion zones; as well as enforcing its laws, such as customs, marine resources, marine ecology and fisheries.
Under their law, the CCG may use non-lethal force to stop a violation of the law, although it may also issue a warning and employ a hand-held weapon if the order to stop is not heeded. It may also use lethal seaborne and airborne weapons to counter terrorism or serious violence at sea. It is notable that use of lethal force by the CCG is not subject to the condition of self-defense or military necessity.
Clearly, the nature of the CCG as a military force or a law enforcement force depends on the scope of the functions it is performing at any given moment, and on the level of force it may employ at that point. Its military functions is not conditioned upon the existence of war.
Under the Ordinance on the Vietnam Coast Guard, the VCG is considered the “people’s armed force” under the management and administration of the Ministry of Defense. It is tasked to protect the country’s national sovereignty and jurisdiction not only in the internal and territorial waters but also in the CZ, EEZ and CS. It has authority to enforce in said areas laws and treaties relating to natural resources, environmental pollution, customs, piracy, terrorism, human trafficking and drug trade.
The VCG has authority to stop a violation of the laws. If its order to stop is not heeded, it may use force to effect compliance by using weapons, including by opening fire in certain cases, such as to defend one’s self or others or prevent escape, provided that a prior warning has been issued.
Similar to the CCG, use of lethal force by the VCG is not conditioned upon self-defense or necessity (as mere prevention of escape justifies lethal force). Moreover, the military function of the VCG of defending the sovereignty of Vietnam is not conditioned upon a declaration of war.
Upon the other hand, our RA 9993 provides that the PCG shall be attached to the Department of Transportation and Communication (DOTC) during peacetime and to the Department of National Defense during wartime. It vested the PCG with maritime law enforcement, safety and security functions, and does not mention the military functions that the PCG might perform following a declaration of war.
In a separate instrument, namely a PCG Manual on the Rules on the Use of Force, the DOTC authorized that the PCG to use deadly force “under extreme necessity” in order to deal with “foreign registered vessels and their crew within the internal waters, archipelagic waters and territorial sea.” It may also be resorted to in the course of law enforcement in order to defend oneself and others. In both cases, prior warning is required.
More importantly, the Manual provides that, within the Philippine CZ, the use of deadly force against a state actor is proscribed, except when the Operations Order (OPORD) provides otherwise. Within “non-contested areas in the exclusive economic zone” of the Philippines, use of deadly force is not countenanced even against vessel engaged in “hostile actors,” unless the OPORD provides otherwise. There is no guideline on use of force in contested areas, such as the TS of disputed rocks.
The PCG is a civilian law enforcement force during peacetime. While it may transform into a military force upon a declaration of war, the rules governing its military activities have yet to be defined.
To summarize, the CCG and VCG have military functions even during peacetime. The PCG is a purely civilian law enforcement unit during peacetime.
To be continued