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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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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.

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

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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.