“Police force” or “military force”? A functionalist framework for the South China Sea

Abstract

In the disputed maritime areas of the South China Sea, frequent coercive standoffs between state law enforcement vessels have made the demarcation between police force and military force a pressing legal issue. Through a comparative analytical approach, the dual administrative and military nature of coast guard agencies, paired with the absence of clear substantive limits on different types of weapons and use intensity, renders the traditional formalism-based approach unworkable. This article advocates a shift to functionalism, which determines the legal nature of coercive maritime acts by their actual function, and develops a four-element classification framework covering the target of the action, the legal basis invoked, the measures of implementation, and the systemic effect of the conduct. On this basis, this article proposes two collaborative governance mechanisms—area-specific law enforcement cooperation and the tiered response mechanism—to reduce risks of miscalculation and unintended escalation through a phased incremental approach.