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The Law of the Sea and PRC Gray-Zone Operations in the South China Sea

Published online by Cambridge University Press:  27 October 2022

Rob McLaughlin Open the ORCID record for Rob McLaughlin [Opens in a new window]
Rob McLaughlin*
Affiliation:
University of Wollongong, Australian National Centre for Oceans Resources and Security, Wollongong, Australia; U.S. Naval War College, Newport, Rhode Island, United States.
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Extract

A growing number of incidents—particularly since 2009—highlight the South China Sea (SCS) as the preeminent venue for the People's Republic of China (PRC) maritime gray zone operations. “Gray zone operations” are, in essence, operations that are designed to exploit or create legal (and other) uncertainties for a military or strategic advantage. A prominent example is the way that China has used the so-called nine(ten)-dash line without fully explaining the legal basis for it. There are other examples, as well. China has deliberately cultivated uncertainty about the sovereign status of maritime militia vessels—and thus about whether and how the conduct of these vessels might be directly attributable to the PRC. It has harassed U.S. survey vessels seventy-five nautical miles (nm) south of Hainan Island in an effort to disrupt military survey operations that it claims are impermissible and has sunk a Philippine fishing vessel at Reed Bank in an effort to enforce Chinese claims to exclusive fisheries rights in this area. It has also asserted claims and enforcement rights in zones that clearly belong to other states—including actions against Indonesian fishing vessels in seas in the vicinity of the Natuna Islands, which are part of the Indonesian Exclusive Economic Zone (EEZ) (and Continental Shelf). And it has conducted operations on the basis of inapplicable maritime zone rights, such as by asserting a territorial sea and thus the right to control innocent passage around low-tide elevations with artificial installations built upon them—such as with Mischief Reef. The list goes on.

Information

Type
Current Developments
Information
American Journal of International Law , Volume 116 , Issue 4 , October 2022 , pp. 821 - 835
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press for The American Society of International Law

I. Introduction: PRC Legal Warfare and Gray Zone Operations

A growing number of incidents—particularly since 2009—highlight the South China Sea (SCS) as the preeminent venue for the People's Republic of China (PRC) maritime gray zone operations. “Gray zone operations” are, in essence, operations that are designed to exploit or create legal (and other) uncertainties for a military or strategic advantage. A prominent example is the way that China has used the so-called nine(ten)-dash line without fully explaining the legal basis for it.Footnote 1 There are other examples, as well. China has deliberately cultivated uncertainty about the sovereign status of maritime militia vessels—and thus about whether and how the conduct of these vessels might be directly attributable to the PRC. It has harassed U.S. survey vessels seventy-five nautical miles (nm) south of Hainan Island in an effort to disrupt military survey operations that it claims are impermissibleFootnote 2 and has sunk a Philippine fishing vessel at Reed Bank in an effort to enforce Chinese claims to exclusive fisheries rights in this area.Footnote 3 It has also asserted claims and enforcement rights in zones that clearly belong to other states—including actions against Indonesian fishing vessels in seas in the vicinity of the Natuna Islands,Footnote 4 which are part of the Indonesian Exclusive Economic Zone (EEZ) (and Continental Shelf).Footnote 5 And it has conducted operations on the basis of inapplicable maritime zone rights, such as by asserting a territorial sea and thus the right to control innocent passage around low-tide elevations with artificial installations built upon themFootnote 6—such as with Mischief Reef. Footnote 7 The list goes on.Footnote 8

These tactics should not be surprising because “legal warfare” is an explicit element of the PRC's approach to contested situations, where gray zone activities are increasingly employed.Footnote 9 Indeed, PRC legal warfare doctrine has been formalized and adopted in a manner few other states have publicly echoed.Footnote 10 The aim of this doctrine is to “shape the legal context for Chinese actions, including building the legal justification for Beijing's actions and using domestic laws to signal Chinese intentions.”Footnote 11

China's legal warfare has two components—one international and one domestic. The international side involves operations that employ existing, or seek to create new, legal uncertainties in order to manipulate or constrain an adversary. Often, this is achieved by treating a situation of legal uncertainty as if there is certainty, and then using the alleged certainty as the basis for further “indisputable” claims. This is the situation with the PRC's nine(ten)-dash line claim. The legal basis for the claim is both ambiguous and multivariant, but it is nevertheless presented as unimpeachable. In a “sum is greater than the parts” sort of argument, the nine(ten)-dash line is described as

a claim of sovereignty over the island groups that always belonged to China and with an additional Chinese claim of historical rights of fishing, navigation, and other marine activities (including the exploration and exploitation of resources, mineral or otherwise) on the islands and in the adjacent waters. The lines may also have a residual function as potential maritime delimitation boundaries.Footnote 12

This legal position is then used to leverage legal processes and tools in the service of further prosecuting and solidifying the claim.Footnote 13 PRC “maritime territorialization”—in this case through use of “narratives to emphasise . . . ‘expressive’ maritime sovereignty, by symbolically linking the sea to their sovereign identity and nationhood”Footnote 14—is both a driver and an effect of this tactic. The domestic component of legal warfare is then designed to shape and facilitate municipal legal arrangements and authorities in support of these international objectives (as well as internal regime protection objectives).Footnote 15

This Current Development describes the nature and implications of the PRC gray zone strategy for the law of the sea, including both its international and its domestic components. Part II defines the gray zone in a bit more detail. Part III then describes and analyzes how the Law of the Sea Convention 1982 (LOSC)Footnote 16 is targeted by four discrete kinds of gray zone operations. Finally, Part IV offers a brief comment regarding how other states might respond to these gray zone operations.

II. Defining the “Gray Zone”?

There is not a single definition for “gray zone operations.” Some analysts define such operations in venue-specific ways—as the place “where hybrid or asymmetric warfare is conducted”Footnote 17—but most define it in terms of the activities that are conducted.Footnote 18 These activities are coercive, but they are structured to “not reach the threshold of conventional military warfare, enabling the perpetrator to avoid risks associated with escalation.”Footnote 19 For example, they are often employed in combination within

gradualist campaigns by state and non-state actors that combine non-military and quasi-military tools and fall below the threshold of armed conflict. They aim to thwart, destabilize, weaken, or attack an adversary, and they are often tailored toward the vulnerabilities of the target state.Footnote 20

In this regard, the maritime domain is as susceptible to gray zone operations as any other venue. James Goldrick has observed that, although gray zone operations at sea “almost always relate to claims of sovereignty or sovereign rights over geographical features or areas of water,” they are not limited to this function. Indeed, as he continues,

grey zone activities in the maritime environment may [also] have ulterior causes, sometimes being employed more as a means of creating additional pressure on a country rather than seeking a solution specific to the maritime issue involved. Conversely, a campaign to achieve a maritime result may well involve additional, non-maritime forms of grey zone pressure.Footnote 21

Moreover, although some analysts suggest that gray zone operations are generally the preserve of “‘revisionist’ or ‘dissatisfied’ states,” which seek to use “tools below the threshold of war to shift international rules, norms, distribution of goods, and patterns of authority to their benefit,”Footnote 22 this is perhaps too narrow a view. Indeed, states seeking stability in the existing order have also historically employed gray zone activities in their operations.Footnote 23

To be clear, gray zone is an operational and strategic, not a legal, concept. It leverages legal categories and relationships—such as the threshold for the application of the law of armed conflict (LOAC)—to advance strategic objectives.Footnote 24 As Rosa Brooks has described:

State gray-zone activities both exploit and create legal ambiguity, and collectively, state gray-zone activities represent a significant challenge to the international rule of law. This is not because such gray-zone activities violate international law: ironically, they might be less destabilizing, from a rule-of-law perspective, if they could be easily categorized as blatant instances of rule breaking.Footnote 25

In practice, gray zone operations often overlap with what is sometimes called “lawfare” (or legal warfare), which is “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”Footnote 26 Gray zone operations often involve lawfare in that they exploit legal ambiguities for military and operational advantage. However, the gray zone is ultimately a broader concept than lawfare, since it employs many non-legal tools and tactics, in conjunction with the law, to advance strategic objectives.

Additionally, just as lawfare can involve both lawful and unlawful conduct, not all instances of gray zone operations should be condemned as unlawful. Neither should the gray zone be characterized as an inevitably malign factor in international relations. Gray zone operations may be lawful or unlawful, and their effects on the rules-based order can be variously malign, ambivalent, or reaffirming. There are at least three reasons for this. First, although legal warfare in gray zone contexts can erode the foundations of the rules-based international order, this is not in every case the inevitable consequence.Footnote 27 Indeed, some gray zone operations simply exploit existing legal uncertainties in the interpretation of concepts. For example, such operations might exploit the uncertainty in the meaning of “requir[ing]” a delinquent warship that is not engaged in innocent passage to “leave the territorial sea immediately.”Footnote 28 The coastal state's view as to whether this authority extends to use of force, or merely diplomatic demarche, is a significant operational consideration for any warship in contested waters. Other gray zone operations leverage arguable or spurious seams between legal rule sets, such as between intervention and self-determination (as with Russia in Crimea in 2014),Footnote 29 or the interventionist authority granted by a claim to be responding to genocide, coupled with claimed recognition of new states (as with Russia in Ukraine in 2022).Footnote 30 That is, while these acts, as a matter of fact, clearly do erode the rules based order, they are nonetheless presented—through (mis)use of accepted terms and concepts—as affirmations of the rules based order. Other such tactics exploit the hypocrisy evident (or claimed) in a legal critique or critic—as Russia and China have sought to do with respect of U.S. (and other Western state) interventions in Kosovo and Iraq.Footnote 31 As Charles Bartles has observed,

it is no surprise Russia justified many aspects of its Crimea annexation on the lessons learned and precedents set by the West in Yugoslavia, which led to the eventual independence of Kosovo. Additionally, post-Kosovo, the most obvious U.S. regime change operations occurred in Afghanistan and Iraq. Russia views those operations as having been very similar to the Kosovo operation. In the Russian view, the pattern of U.S. forced regime change has been as follows: deciding to execute a military operation; finding an appropriate pretext such as to prevent genocide or seize weapons of mass destruction; and finally, launching a military operation to cause regime change.Footnote 32

Second, use of legal warfare (or lawfare) in gray zone operations is widespread and not always wrongful or inconsistent with the precepts of international law. It is common practice, for example, to push for particular legal positions in the face of legal uncertainty. To be clear, such action might also be designed to inconvenience an adversary by requiring them to pause and devote time and resources to responding to the claim, distracting that adversary and others in the international community, or reframing a contest in a way more favorable to the initiating party.Footnote 33 However, that alone is not necessarily a problem.

Third, gray zone operations involving legal warfare, can also serve the useful purpose—and indeed, it is often one of the key stated purposesFootnote 34—of providing avenues for competitionFootnote 35 specifically designed to keep a contest below the threshold of armed conflict.Footnote 36 In this event, the legal warfare serves a productive function, in that it channels the conflict in one direction to avoid a more severe or destructive kind of conflict. Thus, neither gray zone operations, nor legal warfare as a component thereof, are always and everywhere an unmitigated bad; they can serve legitimate, lawful, and rule-reaffirming purposes just as they can serve illegitimate, illegal, and rule-eroding purposes. However, where gray zone operations deny the applicability of contextually relevant rules, posit the application of contextually inappropriate (or non-existent) alternative rules, or seek to create ambiguity as to what rule applies, they serve to erode the rules based order.

III. PRC Gray Zone Operations and Their Implications for the Law of the Sea Convention

To say that the gray zone is not a legal concept, but rather is a concept with legal implications, helps show how international law might be exploited through activities that are not themselves unlawful. That is, gray zone operations are not subject to a self-contained legal regime, the rules of which might be breached by this or that activity. These operations purposefully exploit legal vulnerabilities that exist independently from their deployment. Such vulnerabilities include uncertainties (whether pre-existing or newly manufactured) around agent identification, status, and attribution of conduct—as with “little green men” (Russian forces wearing no distinguishing marks of their nationality) in Crimea,Footnote 37 PRC maritime militia operations in the SCS and East China Sea (where the status of these ostensible fishing vessels as state vessels, or their conduct as attributable to the state, is unclear),Footnote 38 and Russian use of deniable proxy force rebels and private military company personnel in eastern Ukraine (designed to avoid attribution to Russia) prior to the February 2022 invasion.Footnote 39 The PRC's gray zone operations in the SCS also seek to target, or to generate, seams or fractures in the applicable law—in particular with respect to the LOSC. They do so in four ways: (1) the dissonant use of terms and concepts; (2) the exploitation of interpretive uncertainties; (3) the engineering of incoherencies and uncertainties between international and domestic law; and (4) the use of illegitimate or ambiguous thresholds.

A. Dissonant Use of LOSC Terms and Concepts

Although the law of the sea has some inherent ambiguities, much of the “constitution for the oceans”Footnote 40 is well-settled and singular in its application. Claims of an alternative or parallel legal regime in these areas must be understood as insurgent. The PRC's recent attempt to generate a parallel customary law of the sea version of archipelagic rights—the revitalizedFootnote 41 “Four Sha” claim (based on four sets of land features, including all of the Spratly Islands, which China claims)Footnote 42—as a successor to the clearly rejected (and never clarified) nine(ten)-dash line claim is an example of this kind of insurgency.Footnote 43

As is well known, the 2016 SCS Arbitral Award determined that “China's claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China's maritime entitlements under the Convention.”Footnote 44 Initially, the PRC expressly repudiated this findingFootnote 45 and doubled down on the “historic rights” argument, as reflected in the nine-dash line. But China did not clarify this claim in granular LOSC terms.Footnote 46 As such, its meaning and relation to the established LOSC remained unclear. The U.S. State Department nicely captured the dissonance in its Limits in the Seas No. 150, produced six years after the 2016 Arbitral Award, which states that: “Although the PRC has not provided specific information regarding the geographic extent of its historic rights claim, it appears that this claim may coincide with the dashed lines on PRC maps.”Footnote 47

At the same time, the PRC has started propagating a different claim—one which seeks to leverage concepts and rights flowing from the (quite narrowly available) LOSC archipelagic states regime. The goal is to advance a claim that sounds like it is drawn from, but remains fundamentally incompatible with, the LOSC.Footnote 48 The U.S. State Department has observed that:

Notwithstanding this, in its recent statements the PRC has repeatedly claimed that “China has internal waters” that are based on each of its claimed “island groups,” including Dongsha Qundao, Zhongsha Qundao, and Nansha Qundao. As the Chinese Society of International Law has argued in support of the PRC's position on Nansha Qundao, since it “is fully qualified as an archipelago,” the “interconnecting waters within the archipelago are under China's sovereignty over Nansha Qundao.” The PRC has not clarified the geographic extent of these internal waters claims.Footnote 49

As Julian Ku and Chris Mirasola have argued regarding this shift:

China may have concluded that it can better shape (or undermine, depending on your point of view) the law of the sea by adopting UNCLOS terminology. As a rising, revisionist power, China has an interest in reinterpreting the existing rules to better suit its interests. Winning support for straight baselines among international lawyers and governments may be easier than finding support for its Nine-Dash Line claim. China can count on a growing roster of Chinese international lawyers and scholars who could build support for this new approach in the global community. Some have called this strategy a form of “lawfare.”Footnote 50

Nevertheless, as the State Department has concluded, “These expansive maritime claims are plainly inconsistent with international law as reflected in the Convention.”Footnote 51 One reading of this case study is that it simply evidences a failure by the PRC to respect its obligations under a binding arbitral award, and to properly apply the LOSC rules on baselines. This is certainly true. But the PRC's actions are not just a failure to respect obligations or orthodox interpretations; this is a gray zone activity precisely because it seeks to sow confusion and dissonance in the law by using established terms and concepts in dissonant and novel ways. Moreover, China has reinforced its insurgent legal positions with “on water” activities, such as China Coast Guard (CCG) operations to interfere with other states’ fishing fleets and Spratly garrison resupply operations (such as where CCG and maritime militia units maneuvered to prevent Philippines vessels resupplying the Philippines garrison at Second Thomas ShoalFootnote 52) and fishing vessel presence operations (such as the previously noted concentration of more than two hundred fishing vessels at Whitsun Reef in the Philippines EEZ). This integration of legal warfare with operational tactics in the gray zone illustrates this multidimensional nature of PRC activities in the SCS.

B. Exploiting Interpretive Uncertainty

Separately, China has exploited interpretive uncertainties about key schematic concepts in the LOSC to its strategic advantage. An example involves the uncertainty about the status of so-called “maritime militia”Footnote 53 vessels. There is enduring legal opacity around the sovereign status (or otherwise) of some of the subcategories of these vessels. This uncertainty brings with it further uncertainties as to whether the legal characterization of the status and conduct of such fishing-militia vessels is one of private fishing activities or conduct that is directly attributable to the state.Footnote 54

The uncertainty has significant implications for the legal rules that should be applied in response. If these vessels count as private actors, much of their conduct would be criminal and potentially qualify as piracy or fall under the Suppression of Unlawful Activities at Sea Convention.Footnote 55 There would also be questions about whether the flag state adequately responded to the violation by a vessel flying its flag of the rights, such as the freedom of navigation, of other vessels, and thus whether countermeasures against that flag state would be appropriate.Footnote 56 By contrast, if the vessels have sovereign status, their conduct is attributable to China and must be assessed accordingly. One might ask, for example, whether the flag state fulfilled its LOSC obligations to ensure that vessels purporting to exercise law enforcement authority are “clearly marked and identifiable as being on government service and authorized to that effect.”Footnote 57

Such uncertainties in the legal status of the vessels have operational significance. They create delays in efforts to respond to the improper activities at sea, because of doubts as to the appropriate next steps. This is what occurred, for example, with respect to the previously noted Reed Bank incident in 2019, which a number of commentators identified almost immediately as a gray zone operation.Footnote 58 There, uncertainty about the attribution of the conduct to the PRC generated internal Philippine bureaucratic tensions as to how to respond, with different actors within the Philippines government calling for and taking different measures in response. Indeed, on some accounts, this generated “a crisis in the Philippines’ China policy.”Footnote 59 The internal uncertainty was sufficiently problematic that the Philippine defense secretary called for an investigation into the incident.Footnote 60 From the PRC's perspective, this sort of delay is itself a significant gray zone victory. Powerful responses, such as arresting the offending vessel or collecting evidence to support an investigation, are generally more available where the incident is factually, legally, and politically fresh than they are after some time has passed. After a certain point, delays in responding tend to attenuate the capacity for a robust response

C. Engineering Incoherencies and Uncertainties as Between International and Domestic Law

A third gray zone tactic involves embedding in national law concepts or terms that are inconsistent with accepted LOSC terms or concepts and then used in their stead. Doing so creates uncertainty about the extent of the claim in national law, and consequently also about the situations and places in which a response or claim of jurisdiction might be triggered under that law. This is not to say that alternative terms cannot be legitimately used in national implementation, as LOSC Article 310 anticipates. However, this harmonization process violates the Convention if it results in an outcome that “purport[s] to exclude or to modify the legal effect of the provisions of [the] Convention in their application to that State.”Footnote 61

The indicative examples of this gray zone tactic in the SCS context are the recent PRC China Coast Guard Law and Maritime Traffic Safety Law. In the 2021 China Coast Guard Law, the discrete powers and authority of the CCG (e.g., to conduct boardings) are generally expressed in terms drawn from the LOSC and in ways that reflect international best practice. However, the law also contains the fundamentally problematic claim (in Article 3) that these powers and authorizations are exercisable “in the waters under the jurisdiction of China and in the airspace above the waters under the jurisdiction of China. . . .”Footnote 62 This formulation is not itself contrary to the LOSC, but given China's expansionist claims in the SCS, it generates uncertainty about what exactly the PRC means by “waters under the jurisdiction of China” and “airspace above” those waters, to the extent that this airspace differs from national airspace, which extends only to the outer limit of the territorial sea.

When taken in the broader context of public PRC claims as to historic rights and jurisdictions, the use of these terms in domestic law becomes an uncertainty-generating gray zone tactic. The LOSC allows for zone-based jurisdictions founded on sovereignty (internal waters, territorial sea, archipelagic waters) or sovereign rights (such as over resources in the EEZ). The LOSC also allows for flag state jurisdiction, and universal jurisdiction over piracy in the high seas. But the LOSC does not contemplate the sorts of imprecisely described claims that are reflected in the PRC's intentional use of ambiguous language in its domestic legislation. Similarly, as Pete Pedrozo observes of the 2021 Maritime Traffic Safety Law (MTSL),

Article 2 of the MTSL expands application of the law from “coastal waters” to “sea areas under the jurisdiction of the People's Republic of China.” The term “sea areas under the jurisdiction of the People's Republic of China” is not defined in the law and is purposely vague. Enacting ambiguous and imprecise laws allows China to alter its position on the applicability of the law based on the circumstances at the time. Footnote 63

This incoherence between the ways in which the LOSC conceptualizes and expresses the variable jurisdictions available to coastal states, and the apparent implementation of those jurisdictions in national law thus serves both to create uncertainty as to scope of application of the PRC's claims and to preserve a degree of legal freedom of maneuver for the PRC. As Bec Strating and Joanne Wallis have noted, “While it is unclear how or where these security laws may be enforced (if, in fact, they will be), it has raised concerns about China's intentions in territorialising the seas through legislation and undermining navigational provisions in UNCLOS.”Footnote 64 This is the very essence of a gray zone operation—a legally ambiguous (or outright illegitimate) claim, expressing an uncertain threshold for breach and an uncertain scope of authorized response, designed to support and legitimize competitive and confronting operational conduct. It is also an example of the domestic element of PRC legal warfare, whereby domestic law is used to buttress and signal elements of the PRC's international legal warfare campaigns.

D. Below-the-Threshold Operations

As noted above, keeping harassment and confrontation at a level that is high enough to irritate, concern, and tie up resources, while never crossing the threshold into armed conflict, is a standard gray zone tactic. One well-explored dimension of this activity is expansive use of coast guard vessels—“lawships”—as a means of asserting “compliance and control”Footnote 65 while simultaneously signaling an intention to keep the contest below the threshold of a military engagement.Footnote 66 However, PRC employment of fishing and maritime militia vessels to enforce compliance and assert control has radically expanded the gray zone potential of these operations. First, the practice has allowed the PRC to increase significantly the number, duration, and scope of these activities by leveraging a vastly larger and cheaper fleet of vessels and crews than that available to its neighbors. Second, using such vessels and crews also amplifies the gray zone effects of these operations. This is because where the status of a CCG vessel is clear, using fishing vessels that have been set to work on an ad hoc basis as “enforcement” agents creates additional uncertainty about the legal significance of what just happened for the adversary. This uncertainty is then leveraged to create both delays in response and divisions amongst allies as to how to respond. The effect is to make adversaries cautious about claiming the more robust response rights that attach to situations of use of military force. One reason for this is a concern that the initial perpetrator will paint the response as in fact being the initial act (to which they then claim a right of response), or characterize the response as unlawful escalation. In either case, the responder is recast as the aggressor. This is a well-practiced and analyzed tactic in the context of cyber operations, but it can equally be employed in more kinetic contexts at sea.

In the SCS context, one kinetic manifestation of this tactic is the use of maritime militia units to conduct harassment or presence operations, which allows the conduct to be plausibly characterized as the private conduct of angry fisherfolk, rather than as a state-sanctioned use of force, incursion, provocative presence assertion, or “maritime territorialization” operation. These persistent operations are designed to irritate and advance strategic goals but never to cross any escalatory threshold such as common Article 2 of the Geneva Conventions, or Article 51 of the UN Charter. The previously described March 2021 operation at Whitsun Reef, where up to two hundred PRC fishing vessels concentrated and loitered in a presence operation targeted at the Philippines EEZFootnote 67 is an example of a confronting but arguably not unlawful use of formally private vessels in a clearly state-sponsored and state-directed operation. By contrast, the previously noted 2019 Reed Bank incident, where a PRC fishing vessel rammed a Philippines fishing vessel at night, leaving the crew in the water (they were rescued six hours later by a Vietnamese fishing vessel), has been understood in some quarters to have been a deliberate act, carried out under state direction for the purpose of establishing a physical presence and denying that presence to the adversary.Footnote 68 Either way, it was an unlawful act—either as an at least reckless and seemingly intentional private act by the fishing vessel and its crew, or as a public act by a fishing vessel and crew acting under state direction and thus attributable to the PRC. And it is precisely this exploitation of ambiguity and indeterminacy that makes it such an effective form of maritime gray zone activity.

IV. What Is to Be Done?

This Current Development has called attention to the PRC's use of legal gray zone tactics to change the realities in the South China Sea and—as a conscious objective—to undercut the rule of international law. Two brief observations as to dealing with LOSC-focused gray zone operations in the SCS may be distilled from this analysis. First, one way of reducing the effect of gray zone operations that engineer or leverage legal uncertainties is for other states to coordinate and together take a clear, communicated, pre-emptive legal position on issues of status and incident characterization. If the scope for exploiting legal terminological or conceptual uncertainty is narrowed, then the risks of escalation can to some extent be turned back on the perpetrator of the gray zone operation. For example, concerned states might clearly and preemptively communicate their assessment that certain types of maritime militia conduct (e.g., fishing vessel harassment operations of transiting warships or auxiliaries, carried out in situations where nearby CCG or People's Liberation Army-Navy vessels are directing the operation) will henceforth be considered state-directed and state-attributable. Doing so would then place the potential perpetrator of this conduct on notice that those states have predetermined the availability in those situations of more robust or broadly targeted response options as anticipated by, for example, the law of self-defense, or permitted under the law on state responsibility. This is, in effect, what the U.S. Navy recently did when it declared that maritime militia vessels would, in the event of armed conflict at sea, prima facie be considered targetable auxiliaries,Footnote 69 rather than merchant vessels, which would be targetable in a narrower set of circumstances.

Second, states should continue to identify and call out instances in which the PRC attempts to manufacture legal uncertainty in order to set the groundwork for further gray zone operations. This response is already being employed through clear objections to the attempted rewriting of the LOSC that is implicit in the “Four Sha” claim. Formally seeking clarity as to what is meant by the reference to “waters under jurisdiction” in the China Coast Guard Law and the Maritime Traffic Safety Law is another response that might prove worthwhile. Likewise, seeking clarity as to the nature and scope of non-People's Armed Forces Maritime Militia vessel powers and authorities in domestic PRC law, and the identifying marks that such vessels are required to exhibit, would assist in determining the legitimacy of any claims about official conduct by such vessels. That such queries may never be answered does not make them superfluous; simply asking the question for the sake of seeking clarity can to some extent put the ball back in the PRC's court. Furthermore, as a general point, clearly and publicly made—but unanswered—requests for clarification can ultimately undermine an obfuscator's ability to convincingly claim victim status when confronted with responses to the consequences of their gray zone conduct.

Ultimately, PRC gray zone operations in the SCS are not simply a political and strategic challenge; some (but not all) of these operations are also worrying from a legal perspective. There are risks to tolerating deleterious gray zone operations in the SCS, just as there were, and are, risks to tolerating such operations in Crimea and Ukraine. Continued use of the more baleful forms of lawfare-informed gray zone activities over a long period of time—when not called out, legally critiqued, and responded to—will ultimately undermine the broader stability of the finely balanced package deal that is the “constitution for the oceans.”Footnote 70 Such piecemeal erosion of the universality and viability of such fundamental and hard-fought-for pillars of the international legal order is ultimately not in anyone's—including the PRC's—interest. Accepting the uncertainties and delays that gray zone operations seek to create—and thus deferring lawful, early, and more decisive responses to gray zone competitive lawfare—is not necessarily a de-escalatory strategy if it facilitates further blurring of the already challenging line between unacceptable and acquiesced claims and conduct in the SCS and leads to more and more aggressive displays of material power by the PRC.

References

1 Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in the Hong King Special Administrative Region, Beijing Has Case for “Historic Rights” at Sea (Apr. 1, 2016), at https://www.mfa.gov.cn/ce/cohk//eng/Topics/scs/t1352537.htm. The “10th” dash—which is to the west of Taiwan and very close to the Japanese island of Yonaguni—was revived by the PRC in 2013. Euan Graham, China's New Map: Just Another Dash?, Strategist (Australian Strategic Policy Institute, Sept. 17, 2013), at https://www.aspistrategist.org.au/chinas-new-map-just-another-dash.

2 See, e.g., Michael Green, Kathleen Hicks, Zack Cooper, John Schaus & Jake Douglas, Countering Coercion in Maritime Asia: The Theory and Practice of Gray Zone Deterrence, Ctr. Strategic & Int'l Stud., at 52–65 (May 9, 2017), available at https://www.csis.org/analysis/countering-coercion-maritime-asia (on the USNS Impeccable incident).

3 Jason Gutierrez, Philippines Accuses Chinese Vessel of Sinking Fishing Boat in Disputed Waters, N.Y. Times (June 12, 2019), at https://www.nytimes.com/2019/06/12/world/asia/philippines-china-fishing-boat.html; Jeoffrey Maitem, Philippine Fishing Boat's Sinking in South China Sea Was “Just a Collision,” Duterte Says, S. China Morning Post (June 17, 2019), at https://www.scmp.com/news/asia/diplomacy/article/3014928/sinking-filipino-fishing-boat-south-china-sea-was-just.

4 Reported by the local Indonesian commander as including operations within thirty nautical miles of Pulau Laut, and presence transits as close as ten nautical miles from Pulau Laut. Amanda Hodge & Dian Septiari, Pulau Laut: On the Front Line of the China Threat, Australian, at 22–23 (June 11–12, 2022). See Tiola Dinato & Dedi Dinarto, The Natuna Standoff: Transcending Fisheries Issues?, Diplomat (Nov. 5, 2020), at https://thediplomat.com/2020/11/the-natuna-standoff-transcending-fisheries-issues (“Since 2010, Indonesia had been involved in at least seven maritime clashes with Chinese Coast Guard (CCG) vessels, in which the Indonesian side has attempted to prevent Chinese illegal fishing within the nation's EEZ. For instance, in January 2020, Bakamla spotted around fifty Chinese fishing boats fishing illegally off Natuna Besar, accompanied by two CCG vessels and a frigate. Following a formal protest from Indonesia's Ministry of Foreign Affairs, the Chinese foreign ministry spokesperson claimed that Chinese fishermen were free to conduct activities in their ‘traditional fishing ground,’ and that nothing would change ‘the objective fact that China has rights’ over the relevant waters.”); Tri Indah Oktavianti, Bakamla Drives Chinese Coast Guard Vessel Off North Natuna Waters, Jakarta Post (Sept. 13, 2020), at https://www.thejakartapost.com/news/2020/09/13/bakamla-drives-chinese-coast-guard-vessel-off-north-natuna-waters.html (“[T]he Chinese ship insisted that it had the right to patrol around the so-called nine-dash line—China's geographic expression in the South China Sea that denotes China's traditional fishing grounds. One of the nine dashes slices through waters north of the Natuna Islands.”).

5 As the U.S. State Department's Limits in the Seas No. 150 – People's Republic of China: Maritime Claims in the South China Sea (Jan. 2022) notes (at 3): “To the south, seemingly outside the dashed lines, are Indonesia's Natuna Islands, the territorial sovereignty of which is not disputed.” Available at https://www.state.gov/wp-content/uploads/2022/01/LIS150-SCS.pdf. The Continental Shelf claims in the near vicinity of the Natunas have been long agreed as between Indonesia and Malaysia. Agreement Between the Government of Malaysia and the Government of Indonesia on the Delimitation of the Continental Shelves Between the Two Countries (1969), available at https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/MYS-IDN1969CS.PDF.

6 Ankit Panda, China Condemns US FONOP Near Mischief Reef in the South China Sea, Diplomat (Mar. 25, 2018), at https://thediplomat.com/2018/03/china-condemns-us-fonop-near-mischief-reef-in-the-south-china-sea (“Because of Mischief Reef's status as a feature that is underwater at high tide, it is not entitled to any 12-nautical-mile territorial sea. For this reason, the two publicly known U.S. FONOPs near this feature have purposely involved actions that are excluded by the United Nations Convention on the Law of Sea's (UNCLOS) provisions on innocent passage.”).

7 According to the South China Sea arbitral award, Mischief Reef is neither a rock nor an island, and thus is incapable of supporting a territorial sea claim. In the Matter of the South China Sea Arbitration Before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea, Between the Republic of the Philippines and the People's Republic of China, PCA Case No. 2013-19, Award, para. 378 (July 12, 2016), at https://pcacases.com/web/sendAttach/2086 (hereinafter, South China Sea Arbitral Award).

8 For example, another gray zone tactic involves claiming legitimate purposes as a cover for conduct that is clearly targeted at different ends. The concentration of more than two hundred PRC fishing/maritime militia vessels at Whitsun Reef within the Philippine EEZ, for example, was ostensibly due to the weather. Embassy of the People's Republic of China in the Republic of the Philippines Press Release, Statement by Spokesperson of the Chinese Embassy in the Philippines on the Presence of Alleged Chinese Maritime Militia Vessels at Niu'e Jiao (Mar. 22, 2021), at https://www.mfa.gov.cn/ce/ceph//eng/sgdt/t1863034.htm. However, the seas were reportedly quite moderate at the time and the incident was understood by its target—the Philippines—as a provocative presence assertion or “militarization” operation. South China Sea: Alarm in Philippines as 200 Chinese Vessels Gather at Disputed Reef, Guardian (Mar. 22, 2021), at https://www.theguardian.com/world/2021/mar/22/south-china-sea-philippines-200-chinese-vessels-whitsun-reef; Ryan D. Martinson & Andrew S. Erickson, Manila's Images Are Revealing the Secrets of China's Maritime Militia, For. Pol'y (Apr. 19, 2021), at https://foreignpolicy.com/2021/04/19/manilas-images-are-revealing-the-secrets-of-chinas-maritime-militia; Department of Foreign Affairs, Republic of the Philippines Press Release, Statement of the National Task Force for the West Philippine Sea (NTF-WPS) on Chinese Maritime Militia (CMM) Vessels Disperse to Other Areas in The Kalayaan Island Group (KIG) and West Philippine Sea (WPS) (Mar. 31, 2021), at https://m.facebook.com/dfaphl/posts/1921360051352153?locale=ne_NP&_rdr (“The Philippines calls on China to immediately withdraw these vessels flying its flag. NTF-WPS stands by its observation that these so-called ‘fishing’ vessels are maritime militia. Their build-up and massing formation from Julian Felipe Reef to other areas of the Kalayaan Island Group is hazardous to navigation and safety of life at sea. They may be doing illicit activities at night and their lingering (swarming) presence may cause irreparable damage to the marine environment due to marine pollution and destruction of coral reefs. Their swarming also poses a threat to the peaceful exercise of sovereign rights of the Philippines in its EEZ.”).

9 Stefan Halper, China: The Three Warfares, at 13, 29, 46–70 (Report for the Office of Net Assessment (U.S.), May 2013), available at https://www.iwp.edu/wp-content/uploads/2019/05/201810171_HalperChinaThreeWarfares.pdf (“China's strategy in using formal international law to justify its claims takes the form of legal layering. Leveraging a set of rotating arguments, with several legal justifications in play allows for movement from one legal argument to another should the previous suffer flaws in legal validity. Thus, if one argument fails, others can be swiftly leveraged to create, in the aggregate, an overall plausible legal case.”); Michael Clarke, China's Application of the “Three Warfares” in the South China Sea and Xinjiang, Orbis, at 187, 191, 192 (Spring 2019) (reports that the doctrine was officially adopted in 2003 and that within the doctrine, legal warfare “involves the exploitation of legal systems, both international and domestic, in order to claim the legal high-ground, assert the legitimacy of Chinese claims, and constrain an adversary's operational freedom”).

10 See, for example, Halper, supra note 9, who observes that the Chinese Three Warfares doctrine is “challenging for the US because it is a concept executed by an organization (the General Political Department) that has no analogue in the US.” Id. at 376.

11 Peter Mattis, China's ‘Three Warfares’ in Perspective, War on the Rocks (Jan. 30, 2018), at https://warontherocks.com/2018/01/chinas-three-warfares-perspective.

12 Gao, Zhiguo & Jia, Bing Bing, The Nine-Dash Line in the South China Sea: History, Status, and Implications, 107 AJIL 98, 108 (2013)CrossRefGoogle Scholar. See, however, the counterarguments set out in the AJIL Agora: Dupuy, Florian & Dupuy, Pierre-Marie, A Legal Analysis of China's Historic Rights Claim in the South China Sea, 107 AJIL 124, 141, 141 (2013)CrossRefGoogle Scholar (“[O]ne cannot but be puzzled by the striking contrast between China's assertive stance and far-reaching pretensions in the South China Sea, on the one hand, and the indeterminacy of its legal position as evidenced by the deliberate use of ambiguous terminology and tacit reliance on principles not recognized by international law. . . .”); Beckman, Robert, The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea, 107 AJIL 142, 163 (2013)CrossRefGoogle Scholar (The PRC “appears to be asserting jurisdiction over the waters and seabed and subsoil of the South China Sea based on historic rights and entitlements that predate UNCLOS and the modern law of the sea. If so, it is asserting rights and jurisdiction in the EEZs of other states even though those states, under UNCLOS, enjoy sovereign rights and jurisdiction to explore and exploit the natural resources in their EEZs.”)

13 See Gao & Jia, supra note 12, at 124 (“[W]hile China relies heavily on its long and overwhelming history to justify its title to territorial sovereignty and maritime jurisdiction in the South China Sea, other claimant states repeatedly stress the imperative of their rights under UNCLOS. Nonetheless, the solution perhaps lies somewhere in the middle of these arguments.”) For analysis of a similar approach in another field of international law, see White, Bret Austin, Reordering the Law for a China World Order: China's Legal Warfare Strategy in Outer Space and Cyberspace, 11 J. Nat'l Security L. & Pol'y 435, 445–47 (2021)Google Scholar.

14 Strating, Rebecca & Wallis, Joanne, Maritime Sovereignty and Territorialisation: Comparing the Pacific Islands and South China Sea, 141 Marine Pol'y 105, 110 (2022)Google Scholar.

15 As with, for example, the China Coast Guard Law. See Section III.C infra. See also the use to which domestic decrees and instruments were put by Gao and Jia, supra note 12, at 104–05, in supporting the 9-dash line claim in the 2013 AJIL Agora on the South China Sea.

16 Recognizing, of course, that for some non-states party to the LOSC, this treaty nevertheless mostly parallels and mirrors the relevant customary international law of the sea.

17 John Raine, War or Peace? Understanding the Grey Zone, IISS (Apr. 3, 2019), at https://www.iiss.org/blogs/analysis/2019/04/understanding-the-grey-zone.

18 See, for example, U.S. Special Operations Command (SOCOM), The Gray Zone, at 1 (White Paper, Sept. 9, 2015), available at https://info.publicintelligence.net/USSOCOM-GrayZones.pdf (“[G]ray zone challenges are defined as competitive interactions among and within state and non-state actors that fall between the traditional war and peace duality. They are characterized by ambiguity about the nature of the conflict, opacity of the parties involved, or uncertainty about the relevant policy and legal frameworks.”); International Security Advisory Board, Report on Gray Zone Conflict, at 1 (Jan. 3, 2017), available at https://2009-2017.state.gov/documents/organization/266849.pdf (“The term Gray Zone (‘GZ’) denotes the use of techniques to achieve a nation's goals and frustrate those of its rivals by employing instruments of power—often asymmetric and ambiguous in character—that are not direct use of acknowledged regular military forces.”). This conception of “gray zone” is to be distinguished from the International Tribunal for the Law of the Sea's use of “grey area” to describe a physical area of ocean space and continental shelf under dispute. Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangl./Myan.), Judgment, para. 464 (ITLOS Mar. 14, 2012), available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/published/C16-J-14_mar_12.pdf (“In the present case, the area, referred to by the Parties as a ‘grey area,’ occurs where the adjusted equidistance line used for delimitation of the continental shelf goes beyond 200 nm off Bangladesh and continues until it reaches 200 nm off Myanmar.”).

19 Megan Price, Taming the “Grey Zone,” Interpreter (Lowy Institute, Dec. 7, 2021), at https://www.lowyinstitute.org/the-interpreter/taming-grey-zone.

20 Atlantic Council, Today's Wars Are Fought in the “Gray Zone.” Here's Everything You Need to Know About It, Hybrid Conflict Proj. (Feb. 23, 2022), at https://www.atlanticcouncil.org/blogs/new-atlanticist/todays-wars-are-fought-in-the-gray-zone-heres-everything-you-need-to-know-about-it; see also Michael J. Mazarr, Mastering the Gray Zone: Understanding a Changing Era of Conflict; Strategic Stud. Inst., at 58 (2015), available at https://press.armywarcollege.edu/monographs/428/ (where he lists these key features as: “Pursues political objectives through cohesive, integrated campaigns; Employs mostly nonmilitary or nonkinetic tools; Strives to remain under key escalatory or red line thresholds to avoid outright, conventional conflict; and Moves gradually toward its objectives rather than seeking conclusive results in a specific period of time.”).

21 James Goldrick, Grey Zone Operations and the Maritime Domain, Australian Strategic Pol'y Inst., at 5 (Oct. 2018), at https://ad-aspi.s3.ap-southeast-2.amazonaws.com/2018-10/SR%20131%20Grey%20zone%20operations.pdf?VersionId=V7EA5lJx4eMZPm7rr9snXkXq8Q46O.Wg.

22 Mazarr, supra note 20, at 12. As Mazarr notes, conceptions of what constitutes a “revisionist” or “dissatisfied” state “generally point to states that have some burning reason for overturning major elements of the existing system.”

23 As has been noted by Geoffrey Till of Julian Corbett's assessment of UK operations during the 7 Years War. See, inter alia, Geoffrey Till, Grey Zone Operations: The Rules of the Game (RSIS IDSS Paper No. 24/2022, Apr. 5, 2022), available at https://www.rsis.edu.sg/wp-content/uploads/2022/04/IP22024.pdf; see also Alex Hollings, Is America Ready to Fight in the “Grey Zone” Against Russia and China?, Nat'l Interest (May 27, 2021), at https://nationalinterest.org/blog/buzz/america-ready-fight-%E2%80%98grey-zone%E2%80%99-against-russia-and-china-186182.

24 See, inter alia, U.S. Department of Defense, Law of War Manual, para. 1.3.1.2 (June 2015, updated Dec. 2016), at https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190; Christopher Greenwood, The Concept of War in Modern International Law, 36 Int'l & Comp. L. Q. 283, 284–87 (1987). In respect of cyber operations—as an indicative domain where uncertainty or ambiguity around such thresholds are routinely exploited—see Michael N. Schmitt, Peacetime Cyber Responses and Wartime Cyber Operations Under International Law: An Analytical Vade Mecum, 8 Harv. Nat'l Security J. 240 (2017).

25 Rosa Brooks, Rule of Law in the Gray Zone, Mod. War Inst. (Feb. 7, 2018), at https://mwi.usma.edu/rule-law-gray-zone.

26 Charles J. Dunlap, Jr., Lawfare Today: A Perspective, Yale J. Int'l Aff. 146 (Winter 2008).

27 Id.

28 Convention on the Law of the Sea, Art. 30, Dec. 10, 1982, 1833 UNTS 397 [hereinafter, LOSC].

29 Burke-White, William, Crimea and the International Legal Order, 56 Survival: Glob. Pol. & Strategy 65, 65 (2014)CrossRefGoogle Scholar (In relation to Russia's exploitation in respect of Crimea in 2014, of long-recognized challenges in the application of the legal regime attending the concept of self-determination: “In Crimea, Russia has cleverly embraced international law and, in so doing, exploited the tension between a fundamental principle that prohibits the acquisition of territory through the use of force and an equally fundamental right of self-determination to take Crimea as its own.”).

30 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), Order, (Int'l Ct. Just. Mar. 16, 2022), available at https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf (For example, in paragraph 59: “[I]t is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party's unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.”).

31 A case in point being Russian references to Kosovo in 1999 and Iraq in 2003, whenever Russia is criticized by, variously, NATO, the United States, and the UK, in respect of aggressive acts. See, inter alia, Lauri Mälksoo, Russia and China Challenge the Western Hegemony in the Interpretation of International Law, EJIL:Talk! (July 15, 2016), at https://www.ejiltalk.org/russia-and-china-challenge-the-western-hegemony-in-the-interpretation-of-international-law.

32 Bartles, Charles, Getting Gerasimov Right, Mil. Rev. 30, 32 (Jan.–Feb. 2016)Google Scholar. Bartles's comment is made in the context of his analysis of “hybrid warfare” as drawn from Valery Gerasimov's, The Value of Science is in the Foresight: New Challenges Demand Rethinking the Forms and Methods of Carrying Out Combat Operations, Mil. Rev. 23 (Jan.–Feb. 2016) (originally published in Russian in 2013), available at https://www.armyupress.army.mil/Portals/7/military-review/Archives/English/MilitaryReview_20160228_art008.pdf. It is also of note for current purposes that the PRC has an unofficial doctrinal equivalent to hybrid warfare—known as “unrestricted warfare”—which likewise involves using all military and non-military tools available (including lawfare and gray zone operations), in a sequenced, integrated, and coordinated manner, in order to achieve victory over an adversary who may appear to have greater conventional military power. Qiao Liang & Wang Xiangsui, Unrestricted Warfare (1999). However, the degree to which this theory actually represents PRC doctrine remains disputed. For a view that unrestricted warfare does not represent PRC doctrine, see Josh Baughman, “Unrestricted Warfare” Is Not China's Master Plan, China Aerospace Stud. Inst. (Apr. 25, 2022), available at https://www.airuniversity.af.edu/Portals/10/CASI/documents/Research/CASI%20Articles/2022-04-25%20Unrestricted%20Warfare%20is%20not%20China's%20master%20plan.pdf. For a view that unrestricted warfare is reflective of PRC doctrine, see David Barno & Nora Bensahel, A New Generation of Unrestricted Warfare, War on the Rocks (Apr. 19, 2016), at https://warontherocks.com/2016/04/a-new-generation-of-unrestricted-warfare.

33 As with the 2016 South China Sea arbitration—see further below. See also Tara Davenport, “Lawfare” in the South China Sea Disputes, Interpreter (Lowy Institute, Apr. 1, 2022), at https://www.lowyinstitute.org/the-interpreter/lawfare-south-china-sea-disputes (“[N]ot all uses of the law and/or legal institutions to achieve certain objectives are necessarily harmful, and indeed ‘lawfare’ can play a useful role in contentious state disputes. . . . [I]nteraction with these legal mechanisms has inevitably compelled the claimants to examine its legal position in the South China Sea and communicate them. This has led to an incremental (albeit incomplete) clarification of maritime claims from the Spratly Islands and is an important step in dispute settlement—without knowing the scope of the dispute, how can one hope to resolve it?”).

34 See, e.g., Lyle Morris, et al., Gaining Competitive Advantage in the Gray Zone: Response Options for Coercive Aggression Below the Threshold of Major War 8 (2019), at https://www.rand.org/pubs/research_reports/RR2942.html (“The gray zone is an operational space between peace and war, involving coercive actions to change the status quo below a threshold that, in most cases, would prompt a conventional military response, often by blurring the line between military and nonmilitary actions and the attribution for events.”); Peter Layton, Bringing the Grey Zone into Focus, Interpreter (Lowy Institute, July 22, 2021), at https://www.lowyinstitute.org/the-interpreter/bringing-grey-zone-focus (“In general, grey zone activities involve purposefully pursuing political objectives through carefully designed operations; moving cautiously towards goals rather than seeking decisive results quickly; acting to remain below key escalatory thresholds so as to avoid war; and using all instruments of national power, particularly non-military and non-kinetic tools, such as cyber warfare.”).

35 Competition in such situations has been defined as follows: “Situations in which joint forces take actions outside of armed conflict against a strategic actor in pursuit of policy objectives.” See U.S. Department of Defense, Joint Doctrine Note 1–19: Competition Continuum 2 (June 3, 2019), available at https://www.jcs.mil/Portals/36/Documents/Doctrine/jdn_jg/jdn1_19.pdf.

36 Till, supra note 23, at 1 (“It is largely kept below the level of conventional war-fighting operations in order to limit the costs of victory—or defeat.”); see Dunlap, supra note 26, at 147 (“Lawfare can operate as a positive ‘good.’ Ideally, substituting lawfare methodologies for traditional military means can reduce the destructiveness of war, if not its frequency.”).

37 Vitaly Shevchenko, “Little Green Men” or “Russian Invaders”?, BBC (Mar. 11, 2014), at https://www.bbc.com/news/world-europe-26532154.

38 Gregory Poling, Tabitha G. Mallory & Harrison Prétat, Pulling Back the Curtain on China's Maritime Militia, CSIS (Nov. 2021), at https://csis-website-prod.s3.amazonaws.com/s3fs-public/publication/211118_Poling_Maritime_Militia.pdf?Y5iaJ4NT8eITSlAKTr.TWxtDHuLIq7wR.

39 Int'l Crisis Group, Rebels Without a Cause: Russia's Proxies in Eastern Ukraine (Europe Report No. 254, July 16, 2019), at https://www.crisisgroup.org/europe-central-asia/eastern-europe/ukraine/254-rebels-without-cause-russias-proxies-eastern-ukraine; Linder, Andrew, Russian Private Military Companies in Syria and Beyond, 16 New Perspec. For. Pol'y (CSIS) 17, 18 (2018)Google Scholar, at https://www.csis.org/npfp/russian-private-military-companies-syria-and-beyond (“The deniability resulting from Russia's use of private military groups makes crafting a response difficult . . . .”); James K. Wither, Proxy Power: The Challenge of Russia's Private Military & Security Companies, Marshall Ctr. (2020), available at https://www.marshallcenter.org/sites/default/files/files/2020-10/pC_V10N3_en_Wither.pdf; Russia's Brutal Mercenaries Probably Won't Matter Much in Ukraine, Economist (Apr. 9, 2022), at https://www.economist.com/international/2022/04/09/russias-brutal-mercenaries-probably-wont-matter-much-in-ukraine.

40 A Constitution for the Oceans, Remarks by Tommy T.B. Koh of Singapore, President of the Third United Nations Conference on the Law of the Sea (Dec. 1982), available at https://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf.

41 See Beckman, supra note 12, at 153–58.

42 Bill Gertz, Beijing Adopts New Tactic for S. China Sea Claims: “Four Sha” Island Groups Replace Illegal 9-Dash Line, Wash. Free Beacon (Sept. 21, 2017), at https://freebeacon.com/national-security/beijing-adopts-new-tactic-s-china-sea-claims; Tuan N. Pham, Time for the US to Stop Losing Ground to China in the South China Sea, Diplomat (Oct. 24, 2017), at https://thediplomat.com/2017/10/time-for-the-us-to-stop-losing-ground-to-china-in-the-south-china-sea; Julian Ku & Chris Mirasola, The South China Sea and China's “Four Sha” Claim: New Legal Theory, Same Bad Argument, Lawfare (Sept. 25, 2017), at https://www.lawfareblog.com/south-china-sea-and-chinas-four-sha-claim-new-legal-theory-same-bad-argument; Bec Strating, Australia Lays Down the Law in the South China Sea Dispute, Interpreter (Lowy Institute, July 25, 2020), at https://www.lowyinstitute.org/the-interpreter/australia-lays-down-law-south-china-sea-dispute.

43 Guilfoyle, Douglas, The Rule of Law and Maritime Security: Understanding Lawfare in the South China Sea, 95 Int'l Aff. 999, 1010–11 (2019)Google Scholar.

44 South China Sea Arbitral Award, supra note 7, para. 278.

45 Shi Jiangtao & Jun Mai, China's Xi Jinping Rejects Any Action Based on International Court's South China Sea Ruling, S. China Morning Post (July 12, 2016), at https://www.scmp.com/news/china/diplomacy-defence/article/1988990/chinas-xi-jinping-rejects-any-action-based.

46 Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study, 17 Chinese J. Int'l L. 207, 427–539 (2018).

47 Limits in the Seas No. 150, supra note 5, at 27.

48 Strating & Wallis, supra note 14, at 4.

49 Limits in the Seas No. 150, supra note 5, at 27.

50 Ku & Mirasola, supra note 42. See also Chinese Society of International Law, supra note 46, at 557–613 (with respect of Chinese claims in relation to continental state outlying archipelago claims).

51 Limits in the Seas No. 150, supra note 5, at 29.

52 South China Sea Arbitral Award, supra note 7, paras. 112(14), 718–57, 1112–27.

53 On the maritime militia generally, see, inter alia, Poling, Mallory & Prétat, supra note 38; Conor M. Kennedy & Andrew S. Erickson, China Maritime Report No.1: China's Third Sea Force, he People's Armed Forces Maritime Militia: Tethered to the PLA, China Maritime Stud. Inst. (Mar. 2017), at https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1000&context=cmsi-maritime-reports.

54 For a more detailed analysis of this question, see McLaughlin, Rob, An Incident in the South China Sea 96 Int'l L. Stud. 505, 517–27 (2020)Google Scholar.

55 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1678 UNTS 221, 27 ILM 668 (1988, entered into force Mar. 1, 1992).

56 LOSC, supra note 28, Art. 58(2) (for EEZ), Art. 87(1)(a) (for High Seas); see The Italian Republic v. The Republic of India Concerning the “Enrica Lexie” Incident, PCA Case No. 2015-28, Award, para. 1038 (May 21, 2020), at https://pca-cpa.org/en/cases/117 (“The Arbitral Tribunal recalls that a breach of freedom of navigation may result from acts ranging from physical or material interference with navigation of a foreign vessel, to the threat or use of force against a foreign vessel, to non-physical forms of interference whose effect is that of instilling fear against, or causing hindrance to, the enjoyment of the freedom of navigation.”).

57 LOSC, supra note 28, Art. 111(5).

58 Renato Cruz de Castro, The June 9 Reed Bank Incident: Chinese Gray Zone Operation in Action?, Bus. World (July 2, 2019), at https://www.bworldonline.com/editors-picks/2019/07/02/240129/the-june-9-reed-bank-incident-chinese-gray-zone-operation-in-action.

59 Renato Cruz de Castro, Incident at Reed Bank: A Crisis in the Philippines’ China Policy, AMTI (June 20, 2019), at https://amti.csis.org/incident-at-reed-bank-a-crisis-in-the-philippines-china-policy.

60 Id. A Supreme Court justice labeled the incident a maritime militia operation, a senior Philippines Navy Admiral characterized the act as deliberate, and the Foreign Ministry filed a diplomatic protest. The president, by contrast, brushed it aside as a “little maritime accident.” See Ramses Amer & Li Jianwei, Beyond the Management of the Reed Bank Collision, Inst. Security & Dev. Pol'y (Oct. 2019), at https://isdp.se/publication/beyond-the-management-of-the-reed-bank-collision; Lucio Blanco Pitlo, Can the Philippines and China Get Past the Reed Bank Debacle?, Diplomat (June 29, 2019), at https://thediplomat.com/2019/06/can-the-philippines-and-china-get-past-the-reed-bank-debacle.

61 LOSC, supra note 28, Art. 310.

62 See, inter alia, Shigeki Sakamoto, China's New Coast Guard Law and Implications for Maritime Security in the East and South China Seas, Lawfare (Feb. 16, 2021), at https://www.lawfareblog.com/chinas-new-coast-guard-law-and-implications-maritime-security-east-and-south-china-seas.

63 See, inter alia, Raul Pedrozo, China's Revised Maritime Traffic Safety Law, 97 Int'l L. Stud. 956 (2021).

64 Strating & Wallis, supra note 14, at 3.

65 Timothy Choi, Sea Control by Other Means: Norwegian Coast Guard Operations Under International Maritime Law 51 Ocean Dev. & Int'l L. 35, 41 (2020).

66 See, e.g., Douglas Guilfoyle & Edward Sing Yue Chan, Lawships or Warships? Coast Guards as Agents of (In)stability in the Pacific and South and East China Sea, 140 Marine Pol'y 105048 (2022) (discussing the inversion this trend represents in respect of Sam Bateman's original thesis that coast guards provide an critical non-military facility for maritime security cooperation and confidence building); Sam Bateman, Coast Guards: New Forces For Regional Order and Security, East-West Centre, at 4–7 (Issues Paper No. 65, Jan. 2003), at https://www.eastwestcenter.org/system/tdf/private/api065.pdf?file=1&type=node&id=31902.

67 See, e.g., Ryan D. Martinson & Andrew S. Erickson, Manila's Images Are Revealing the Secrets of China's Maritime Militia, For. Pol'y (Apr. 19, 2021), at https://foreignpolicy.com/2021/04/19/manilas-images-are-revealing-the-secrets-of-chinas-maritime-militia.

68 Cruz de Castro, supra note 59.

69 James Kraska, China's Maritime Militia Vessels May Be Military Objectives During Armed Conflict, Diplomat (July 7, 2020), at https://thediplomat.com/2020/07/chinas-maritime-militia-vessels-may-be-military-objectives-during-armed-conflict.

70 A Constitution for the Oceans, supra note 40.