Vietnam south china sea claims

“China’s strategy is being implemented with a power-based approach versus a rules-based approach,” said Cmdr. Jonathan Odom, Military Professor of International Law, Marshall Center for Security Studies.

He was speaking Tuesday at a virtual webinar on the “Rule of Law and Gray Zone Activities in the East and South China Seas,” hosted by Pacific Forum, a non-profit, foreign policy research institute based in Honolulu, Hawaii, the U.S.

Odom noted that China’s strategy has recently been called cabbage strategy, salami slicing, or win without fighting at sea. Beijing is trying to demonstrate superiority in the situation and to trouble others while refraining for provoking countries enough to trigger use of force and self-defense. He called them “gray activities.”

In the United Nation Charter, there is a provision that an armed attack triggers the right of self-defense of the country that’s being attacked. Most countries take the view that while the right to self-defense is triggered by an armed-attack, other uses of force enjoin the attacked nation to respond with actions that don’t rise to the level of use of force.

“I’d rather use the phrase ‘risk-fare,’ that is, using risk as a weapon,” Odom said.

The international rules based approach demands countries to operate safely and peacefully, so its activities call into question whether China is maintaining those obligations, he added.

Explaining the gray zone activities further, Odom said China deploys various gray actors, referring to the role of China’s maritime militia that he has catalogued in considerable detail. The militia are funded by the government, organized in a specific hierarchy and structure linked to the local provincial Communist Party as well as the People’s Liberation Army (PLA). They are trained both individually as well as in units. They are acknowledged and rewarded and with all kinds of things in the manner of a military organization. However, China claims they are not government agents.

In March this year, a spokesperson of the Chinese Embassy in the Philippines said: “There was no Chinese maritime militia as alleged” at Whitsun Reef.

The fact has proven to be entirely to the contrary, Odom said.

In mid-April, the Philippines Coast Guard released images of Chinese fishing vessels moored at the Whitsun Reef. These were taken by the crew of a Coast Guard ship that went close to the Chinese vessels. Six of the Chinese fishing vessels were tied together in the lagoon.

Odom emphasized that a decade ago, no one was talking about Chinese militia, the talk was about “patriotic fishermen.” But what people are seeing now is that that narrative has “completely collapsed.”

Chinese vessels, believed to be manned by Chinese maritime militia personnel, are seen at Whitsun Reef, South China Sea, March 27, 2021. Photo by Philippine Coast Guard/National Task Force-West Philippine Sea/Handout via Reuters.

Another gray actor is the Chinese Coast Guard. For years, Chinese narrative has been: “We’re not escalating the situation because we’re only introducing white hulls into the situation,” Odom noted.

Coast guard type forces are commonly called “white hulls,” and regular navy forces are called “grey hulls.” However, the new China’s Coast Guard law and other directives from the Chinese government have placed the Chinese Coast Guard under the Central Military Commission. Therefore, China can no longer say that these are white hulls.

“The narrative that China is not escalating the situation, because they’re only using white hulls, is now a false narrative,” Odom reiterated.

He said that with its gray activities and gray actors, China is creating “gray effects.” China wants to bolster its East Sea claims, but this is impossible at this stage under international law, because it is a disputed area. Therefore, China is creating the gray effects to say later, “Look, we’ve been doing this law enforcement for years.”

China had been flooding the zone with boats in some situations to overwhelm authorities of other countries. Odom recalled the case in 2016 when China deployed over 200 fishing vessels to the area around Senkaku Islands in the East China Sea. Beijing tried to chip away at the idea that “the Senkaku Islands are under the administrative control of Japan.”

Odom said countries need to recognize that China has been using national laws as the justification for its actions for years. Other countries must respect coastal states’ laws, but only those that are in conformity with UNCLOS and other bodies of international law, he said.

For that reason, when people talk about the word “lawfare”, Odom prefers the phrase legal gamesmanship.

“And I would argue that the legal gamesmanship that China is engaging in is an effort to bend international rules with impunity.”

Hanoi (VNA) – International public opinion has criticized the Coast Guard Law of China, saying that China uses the law to legalise its coast guard force’s use of violence to serve the country’s unilateral sovereignty claim in the East Sea (also known as the South China Sea).

The Coast Guard Law of China was adopted at the 25th session of the Standing Committee of the country’s 13th National People’s Congress in late January and officially became effective on February 1.

Philippine Foreign Secretary Teodoro Locsin Jr. filed a diplomatic protest with China over the law authorising its coast guard to fire on foreign vessels.

The new Chinese law is a verbal threat of war to any country that defies it, he wrote.

At a reception for Indonesian Foreign Minister Retno Marsudi and Defence Minister Prabowo Subianto on March 30, Japanese Prime Minister Yoshihide Suga voiced his concern over China ’s activities in the waters, including the enforcement of its Coast Guard Law. Both sides spoke highly of the importance of maintaining free and open navigation based on international law.

Jay Batongbacal, Director of the University of the Philippines’s Institute for Maritime Affairs and Law of the Sea, said this law basically authorizes the China Coast Guard to use force in its attempt to exercise jurisdiction over waters claimed unilaterally by China, and allows it to demolish foreign structures built on Chinese-claimed reefs and islands, as well as to set up exclusion zones to keep foreign vessels out.

This shows the East Asian giant is just continuing with its plans “to take over the South China Sea,” regardless of its ongoing negotiations with other states, including its discussion with ASEAN for a Code of Conduct, he stressed.

Regarding China’s coast guard law, Spokesperson of the Vietnamese Foreign Ministry Le Thi Thu Hang said countries are obliged to comply with international laws and international treaties to which they are a signatory, especially the 1982 United Nations Convention on the Law of the Sea (UNCLOS), when they issue and implement national legal documents relating to the sea.

Vietnam has sufficient historical and legal evidence to prove its sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos in line with international law, national sovereignty, sovereignty rights, and jurisdiction over the waters in accordance with the 1982 UNCLOS, and it will resolutely and persistently take measures in line with international law to protect those legal and legitimate rights, Hang said.

“Vietnam requires relevant countries respect its sovereignty, sovereign rights and jurisdiction in the East Sea, and have the responsibility to enforce international law and the 1982 UNCLOS in good faith, without actions to increase tensions, and actively contribute to building trust, maintaining peace and stability, promoting international order at sea, and security, safety, and freedom of navigation in the East Sea.”/.

Stephen Nagy

The situation is more alarming in the South China Sea. Here it is not just a situation of normal military maneuver, it is much more. In the South China Sea, the rise of maritime military militia of China has been the growing concern for the world and has affected many smaller states in Southeast Asia. The militia draws as such no apparent resemblance with any of the military institutions; dressed as the normal fishermen, these militia groups are however the part of much larger political landscape and tactical diplomacy.

The presence of thousands of militia assets disguised as fisherman boats in the South China Sea have tilted the power balance and have curbed the freedom of smaller independent nation states to a major extent. The militia groups are used as pressure groups against the smaller states like the Philippines, Vietnam, and other countries and in case of the Philippines have even occupied some island features. It is a significant demonstration of the Chinese ability to use these non-military vessels to quickly change the facts in the marine domain.

Chinese vessels at Whitsun Reef, March 27, 2021. Photo by Philippine Coast Guard/via Reuters.

Another aspect of the use of these militia groups is in case of Senkaku Islands. Senkaku Islands, controlled by Japan for over a century now and claimed by China, have given new role to militias. Each of the marine vessels has GPS devices attached to the ships. The signals rallied back to Beijing and data thus collected erodes away the legal argument that Japan has exclusive control on Senkaku Islands. These Chinese militia ships are never pushed back, demonstrating the Japanese don’t have exclusive legal control on these islands, we call it lawfare. By using these tactics China quietly erodes the claims of sovereignty of different nations and tries to establish itself as a sole dominant power in the South China Sea.

On the hand in order to protect the interests of many smaller nations and states like Japan, we have seen increased military activity and exclusive involvement from global powers like the U.S., France, the U.K., Australia, India and Canada. Over the past eight years we have seen an increase in the number and frequency of Fonops in the South China Sea. The U.S. ships move freely to demonstrate that the sea links in South China Sea are governed by international law and not by Chinese domestic laws. Today we see Chinese are feeling uncomfortable due to the growing presence of global power in the South China Sea and see it as a major road policy for their foreign policy implementation. China doesn’t want to go tow to tow with the U.S., and thus Chinese response is not confronting directly with the U.S. but with Japan and other allies.

Japan will ease off pressure in the South China Sea. Chinese response to U.S. Fonops is escalating in other areas with the U.S. allies and partners. At the same time, the U.S. is working with Japan, Australia, and India within the accord to have joint exercises like sea dragon exercises. This accumulates the risk of conflict among major global powers. China has to get used to the presence of foreign powers in the South China Sea and Sea of Japan, while the Fonops have to ensure the security of smaller nation sates. Rather than the U.S. just focusing on Fonops to perceive and support issues in the South China Sea, the need is to bring different kind of formulas and naval corporation into the region so that they can provide some collective capabilities to the various maritime challenges that exist in the sea of Japan, East Chinese Sea, South China Sea and likely in the Indian Ocean living forward.

Another major development on the global scale is the formation of Quad and Quad+ like associations. This achieves more importance in case of the South China sea, and Chinese influence in the Pacific. The association has developed consensus over the major security threats in South China Sea and have brought both human capital and material support to the region. Quad like associations can upset the asymmetry of power and trade balance in the South China Sea and bring more stability to the region, however with an added risk of conflict.

The ideal situation is that the U.S. and China and hopefully China and other partners within the region develop a maritime communication management system so that they can manage each other’s joint behavior. This can avoid crisis, there is a good comparison between the U.S. and Soviets, they have an avenue to communicate directly between commanders and between governments. At this stage, we don’t see this between the U.S. and China, which makes it extremely difficult to predict escalations.

*Dr. Stephen Nagy is a senior associate professor at the International Christian University in Tokyo, a fellow at the Canadian Global Affairs Institute (CGAI) and a visiting fellow with the Japan Institute for International Affairs (JIIA). The opinions expressed are his own.