User:Declan Sullivan/sandbox

I.               INTRODUCTION

With the large-scale costs associated with traditional warfare, states have increasingly opted to pursue their national interests through the use of grey-zone tactics. Grey-zone tactics fall below the threshold for war, however, may still come into conflict with the international rules-based order and international law. These tactics afford the implementing state with plausible deniability over the wrongfulness of their actions – civilians can be used to carry out tasks rather than state military, or legitimate motives can be raised to put up a veneer of legitimacy. Grey-zone tactics in the maritime space have become increasingly popular and effective due to the lack of effective governance of the oceans and gaps in international frameworks to establish a coherent and accepted standard of behaviour – allowing states to exploit ambiguities in international law to further their national interests at the detriment of other states.

China has undertaken a grey-zone campaign in the South China Sea to bolster its military and economic interests in the region. They have adopted a “salami-slicing” philosophy, whereby they pursue consistent incremental gains which when viewed in isolation are too inconsequential to amount to large scale retaliatory measures, however when viewed in totality can amount to significant changes in the region.

The South China Sea is a highly contested region, with China, Taiwan, the Philippines, Malaysia, Brunei, and Vietnam all staking overlapping claims to the region. China has claimed that it has jurisdiction over the near entirety of the South China Sea, basing this claim on a historical 9-dash map which showed it to have such jurisdiction. However, this historical basis has been debated, conflicts with the United Nations Convention on the Law of the Sea (UNCLOS), and in a 2016 decision by the Permanent Court of Arbitration was held to have no legal basis in international law – China claims this decision to be null and void.

China’s main two tactics for furthering their interests in the South China Sea has been their artificial island creation and use of a maritime militia. These tactics have questionable legality under international law and have prompted criticism from other actors in the region. Despite this, these actions have not prompted an outbreak of war. Consequently, they fall within the “grey-zone”.

II.            CHINESE INTERESTS IN THE SOUTH CHINA SEA

A.    Chinese economic interests

The South China Sea has over 60,000 ships and between 3.37 and 5.3 trillion USD pass through it every year (there are conflicting reports on the exact number). Additionally, it hosts large oil and gas reserves – with estimates of 3.6 billion barrels worth of petroleum and other liquids, and 40.3 trillion cubic feet of natural gas existing in these reserves. This makes it highly lucrative for states that can access these reserves, however it remains largely underexploited due to territorial disputes in the region.

China’s artificial island creation and use of their maritime militia to enforce claims over islands in the South China Sea, whilst simultaneously restricting access of other states to those islands, allows them to access these reserves and better control trade through the region. In addition, it allows them to extend the range of their fishing fleets – through this they profit and better protect the food security of their state.

China has a clear economic motive when staking its claim over the South China Sea, accessing natural resources would bolster economic growth, and being able to exercise control over the region through which $874 billion USD of its trade passes through would allow them to protect their economic growth. Additionally, control of the region could be used as leverage in future negotiations with other states, as many states are heavily dependent on the South China Sea for trade.

B.   Chinese military interests

The Chinese Foreign Ministry has maintained that China’s actions in the South China Sea (namely its artificial island creation) merely “enabled China to protect its territorial sovereignty and maritime rights and interests and were required for military defence.” Furthermore, Wu Sichun, the director of the South China Sea Institute, has stated that China’s artificial island building was a necessary self-defence measure in response to the defence cooperation between the US and the Philippines. This sentiment was also echoed by the head of China’s navy, Admiral Wu Shengli, labelling China’s tactics as “necessary defensive measures” rather than a case of militarisation.

Regardless of what Chinese officials and spokespeople say, there is obvious military benefit from increased control over the South China Sea. Specifically, the bases increase the range and deployment possibilities of the Chinese People’s Liberation Army (PLA) forces. China can now deploy fleets of ships, whether it be from the PLA, Chinese Coast Guard, or their maritime militia to disputed areas on a regular basis – allowing China to better assert its claims over the South China Sea. Beyond the maritime space, China has also claimed that its artificial islands “grant them sovereign airspace above those locations” – as such they have placed air bases on these islands and have extended not just the range of their naval fleet but also of their air force. There are also concerns in Western circles over what this could mean for a potential invasion of Taiwan – with increased presence in the South China Sea, China can stonewall supplies to Taiwan in the case of invasion and also launch attacks from militarised islands in the South China Sea.

III.          CHINA’S GREY-ZONE TACTICS IN THE SOUTH CHINA SEA

A.    Artificial island building

Although China is not unique in engaging in land reclamation (artificial island building) efforts, the sheer scale and speed of its efforts is unparalleled in the South China Sea region – they have created 3,200 acres of new land since 2013. Chinese state media has placed the number of people stationed at the islands they occupy at over 5,000 – a figure reported back in October 2022 and therefore likely to have increased in line with China’s gradually increasing presence. The creation of these islands is not limited to the outskirts of China’s Exclusive Economic Zone (EEZ) and has been largely problematic as it often comes within the EEZ of other states – for example as recently as May 2024 the Philippines noticed signs of land reclamation just 90 nautical miles off their coast (falling well within the 200nm EEZ that states enjoy under UNCLOS). The legality of this is further explored in the section 'Legality of China’s artificial island building'.

China creates artificial islands by dredging up massive amounts of sand and gravel, dumping it on top of pre-existing reefs. China’s land reclamation in the Spratly archipelago is estimated to have seen more than ten million cubic metres of sand transported to five reefs. The damage to the marine ecosystem that arises from this process is further explored in the section 'Legality of China’s artificial island building'.

After creating these islands, China militarises them – radomes, gun turrets and close-in weapon systems for detecting and destroying incoming missiles and aircraft are common features on their artificial islands, and intelligence-gathering and submarine-hunting aircraft have been reported to “frequently operate from the airfield [in Fiery Cross].” The militarisation of these islands deters access by rival military forces in areas China claims, increases the projection of Chinese power, and allows its armed forces greater room for manoeuvre in the event of a military conflict (e.g. in a potential invasion of Taiwan).

B.   Maritime militia

China seeks to increase its assertiveness in the region in a manner that has some element of plausible deniability so that other states are not provoked into adopting more drastic retaliation measures. To achieve this, China has largely avoided directly employing PLA naval forces, instead employing civilian vessels controlled by fishermen to perform duties in disputed waters, “including patrolling, monitoring and attacking foreign fishing vessels.” These civilian vessels make up China’s maritime militia – they are comprised of individuals that do not wear military uniform and also engage in regular fishing activities, blurring the line between military and civilian activities. So rather than the Chinese government being directly linked to the harassment of foreign vessels and the prevention of access to territorial waters and commercial activities, the civilian-employed maritime militia operates under the pretext that they are acting under their own directive and initiative to enforce the law.

However, whilst the maritime militia is not officially linked to any government or state agency, “photos and video, data from ship-to-ship automatic identification systems and other tell-tale behaviour like ‘rafting-up’ by tying multiple boats together” have made it clear they are “organised, funded, and directed by the government of China”. The goal of the militia is to “establish [Chinese] presence in disputed areas, swarm and overwhelm other claimants’ activities, or reinforce Chinese presence claims under pressure.”

China has used their maritime militia to take territory from states with competing claims in the South China Sea, employing what Major General Zhang Zhaozhong of the PLA has referred to as the “cabbage strategy”. This is where the militia, sometimes in conjunction with naval forces will surround a contested area with so many boats that “the island is thus wrapped layer by layer like a cabbage.”

General Zhang has touted the effectiveness of the cabbage strategy in taking land from the Philippines, saying “for those small islands, only a few troopers are able to station on each of them, but there is no food or even drinking water there. If we carry out the cabbage strategy, you will not be able to send food and drinking water onto the islands. Without the supply for one or two weeks, the troopers stationed there will leave the islands on their own. Once they have left, they will never be able to come back.”

Examples of the cabbage strategy in use includes March 2021, whereby 220 Chinese fishing vessels anchored near Whitsun Reef, which belongs to the Philippines. The ships cited “rough weather” as their reason for anchoring. However, once surrounded China implemented an Anti-Access/Area Denial (A2/AD) strategy to effectively gain control of the territory. The cabbage strategy has also been used by other Chinese paramilitary forces such as the Chinese coast guard, who, in May 2013, went beyond the traditional mandate for a state’s coast guard by surrounding and blocking supplies to the BRP Sierra Madre, a grounded Philippines ship which now serves as a makeshift military base in the Second Thomas Shoal. China has since continued a blockade around the base to prevent the ship from being repaired, in the hopes that the Philippines will eventually be forced to abandon using it as a base and retreat from the area.

China has also used its maritime militia outside of cabbage strategy missions. The militia is known to harass vessels belonging to other states to make China’s presence known, test the willingness of other states to respond, and potentially push the vessels of other states out of the region. In 2014, the HD-981 incident occurred, whereby the maritime militia (made up of coast guard vessels, transport ships, tugboats, and fishing vessels) was accompanied by naval ships to escort an oil rig from the China National Offshore Oil Corporation to waters falling within Vietnam’s EEZ. The move prevented Vietnam’s fishing vessels from fishing in their traditional fishing grounds within Vietnam’s EEZ and allowed China to exploit Vietnam’s EEZ for their own gain.

Overall, the maritime militia makes up a large part of China’s “grey-zone” activity in the South China Sea. It is deployed to take territory from other states, harass vessels from other states, test the limits for retaliation of other states, increase China’s presence in the region, overwhelm the activities of other states in the region, reinforce China’s claims in the region – all whilst allowing China to maintain limited, but still some, plausible deniability.

IV.         LEGALITY OF CHINA’S GREY-ZONE TACTICS

A.    Legality of China’s artificial island building

The creation of artificial islands can be construed as a violation of international law in two distinct ways – due to their creation falling outside of China’s EEZ, and/or due to the method of creating the islands causing damage to the marine ecosystem.

1.     Legality of creating artificial islands outside of one’s own EEZ

China has ratified UNCLOS and is therefore bound to follow the provisions within it regarding artificial island construction – including the following provision:

Article 60(1) - In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands

If China’s artificial islands fall within their EEZ then they would be within their rights to construct them (although this would still be subject to the environmental provisions of UNCLOS).

In 2016, the Permanent Court of Arbitration (PCA) reached a decision in the dispute between the Philippines and China, resolving the question of whether China’s artificial islands in the Spratly archipelago fell within its own EEZ. It was held that China’s EEZ did not extend to the Spratly chain, that China therefore lacked the authority to construct an artificial island in that region, and that China had subsequently infringed on the Philippines’ EEZ by their constructing and maintaining of an artificial island on Mischief Reef. This violated the Philippines’ “exclusive right to construct and to authorize and regulate the construction, operation and use of… artificial islands” as stated in Article 60(1)(a) of UNCLOS.

China disputed the outcome of the PCA’s decision, labelling it “null and void”. China had argued that Taiping Island, which falls within its EEZ, should be classified as an ‘island’ under international law. This would have allowed China’s EEZ to be extended another 200nm from Taiping Island, as ‘islands’ are given the same status as mainland territory under UNCLOS. However, as Taiping Island was “incapable of self-sufficiently providing for a stable community of inhabitants, it fell under UNCLOS as a ‘rock’ rather than a naturally occurring island.” This only gave China a 12nm territorial sea surrounding Taiping Island and meant they could not extend their EEZ to the Spratly archipelago. Moreover, the mere creation of artificial islands is not enough to create an EEZ for which these islands can then fall within – as outlined in Article 60(8) of UNCLOS.

Regardless of the outcome of this case, there remains a large gap in UNCLOS as it fails to properly contemplate the creation of artificial islands outside of a state’s own EEZ – this ambiguity has undermined its ability to effectively govern the creation of artificial islands in the South China Sea.

2.     Legality of the method of artificial island creation – marine impacts

China has ratified UNCLOS and is therefore bound to follow the environmental commitments contained within it. They include the following:

Article 192 - States have the obligation to protect and preserve the marine environment

Article 194(2) - States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment

Article 194(5) – The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life

In addition to UNCLOS, China is a party to the Convention on Biological Diversity, which contains the following provision:

Article 3 - States have… the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction

China’s land reclamation efforts and creation of channels for ships has destroyed portions of reefs, killing coral and other organisms in the process. In the process of island building the sediment deposited on the reefs “can wash back into the sea, forming plumes that can smother marine life and could be laced with heavy metals, oil and other chemicals from the ships and shore facilities being built.” These plumes damage coral tissue and can block sunlight from organisms such as reef-building corals which are dependent on that sunlight to survive.

In the Spratly archipelago, China engaged in shallow-water dredging, removing “not only sand and gravel, but also the ecosystems of the lagoon and the reef flat, important parts of a reef.” The damaged reefs that Chinese dredgers gathered sand and gravel from “may not fully recover for up to 10 to 15 years.” The reefs where the dredged up sand and gravel gets placed on suffer obvious harm as coral can no longer grow on them with an artificial island now placed over the reef. Additionally, by placing artificial islands on top of reefs, fisheries are also harmed, as these reefs help replenish depleted fish stocks in the South China Sea’s coastal areas.

The negative marine impact from China’s artificial island building clearly violates Articles 192 and 194(5) of UNCLOS. It also violates Article 194(2) of UNCLOS and Article 3 of the Convention on Biological Diversity as the artificial island creation has occurred outside of China’s EEZ and within that of other states. Therefore, the damage is to other states and their environment (per Article 194(2) of UNCLOS), and at the very least the damage is in an area beyond the limits of national jurisdiction (per Article 3 of the Convention on Biological Diversity).

B.   Legality of China’s maritime militia in the South China Sea

Although the link between the maritime militia and Chinese government has been made clear, the militia’s ongoing engagement in regular commercial activity (i.e. fishing) makes it unlikely that it could be proven in an international court of law that specific actions taken were at the behest of the Chinese government – China can still claim the militia are merely commercial actors behaving on their own initiative. However, if a connection to the state could be proven in a court, China may be in breach of UNCLOS and principles of International Humanitarian Law (IHL). Ultimately though, whilst the legality of China’s artificial island building is more clear cut (even despite some gaps in UNCLOS), the legality of the maritime militia’s activities exist very much in a legal grey-zone.

1.     Potential breaches of UNCLOS by the maritime militia

Article 56 of UNCLOS lays out that a within a state’s own EEZ, that state enjoys “sovereign rights and jurisdiction over the economic exploitation and exploration of all resources”. Moreover, Article 58 outlines that other states must have “due regard to the rights and duties of the coastal State”.

The HD-981 incident is a clear example of the maritime militia violating the obligation of “due regard” as contained within Article 58 of UNCLOS. The incident involved the prevention of Vietnam’s fishing vessels from accessing traditional fishing spots within Vietnam’s EEZ, impairing Vietnam’s ability to exploit the resources it is entitled to exploit under Article 56 of UNCLOS.

Use of the cabbage strategy has a similar effect, whereby blocking a state’s access to an island, whether it be in the EEZ of Vietnam or the Philippines, prevents that state from exercising their sovereign right to exploit all resources within its EEZ. As such, “due regard” for the rights of the coastal state has not been complied with by the Chinese maritime militia – violating Article 58 of UNCLOS.

However, the difficulty in proving an official connection between the Chinese state and the maritime militia provides a barrier to successfully making the argument that China has violated Article 58. This could be countered by invoking the involvement of China’s navy in these activities, as they accompanied the maritime militia in the HD-981 incident and are also often involved in the carrying out of the cabbage strategy.

2.     Potential breaches of IHL by the maritime militia

IHL regulates how force is exercised in the case of armed conflict – outlining that force must be exercised in line with the principles of distinction, proportionality, and precautions. An armed conflict is considered to exist “whenever there is a resort to armed force between States”.

The 2017 ICRC Commentary on the Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea provided clarification on this definition, outlining situations that may qualify as an international armed conflict. This included the use of force by a state at sea, motivated by reasons other than the enforcement of maritime law. It could be argued that the accompanying of Chinese naval forces with the maritime militia when performing the cabbage strategy is an exercising of force. This argument follows the lines that these ships forcefully block the entrance of other vessels to the region, and as naval forces have a direct link to the Chinese government this makes the Chinese government responsible for an armed conflict, for which IHL will now apply. The argument has clear weaknesses, it could be argued that the navy accompanying the militia was merely meant to intimidate and threaten force although it would not actually be carried out, and the Chinese government would also argue that all of this was done under the pretence of enforcing maritime law. Where the navy is not involved there is likely to be an insufficient nexus between the militia and state to qualify as an armed conflict.

However, the Commentary also stated that “regardless of who is involved, a situation may qualify as an international armed conflict as long as a State resorts to means and methods of warfare against another State.” This means that even though the maritime militia is not an official branch of the Chinese military, by the state directing the militia an armed conflict may still exist. This is all dependent on what qualifies as “means and methods of warfare”. A means of warfare “generally refers to weapons, weapons systems or platforms employed for the purpose of attack in an armed conflict.” Moreover, what will meet that criteria is weapons that “can cause superfluous injury or unnecessary suffering or widespread, long-term and severe damage to the natural environment”.

The argument for the maritime militia engaging in a means of warfare against another state is that they have been known to use water cannons to target civilian vessels of other states to force them out of the region. Whether water cannons cause the requisite level of injury or damage is debated as both sides will often reveal opposite observations of the incidents involving them.

If the argument that an armed conflict in the South China Sea succeeds, the IHL principles of distinction, proportionality and precaution shall apply. Distinction is the separation between non-combatants and combatants, ensuring that force is only directed at military targets. Proportionality prohibits attacks that may be expected to cause “incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Precaution requires that the attacking party takes measures to ensure non-military targets are evacuated or aware of an incoming attack.

If an armed conflict is proven to exist, China would likely then be in breach of IHL principles of distinction (as incidents have seen foreign fishing vessels targeted rather than military targets), proportionality (as the vessels being targeted have little to no means to fight back and the use of force towards these vessels could cause incidental loss of life and injury to the civilians on board and damage the fishing vessels as well), and precaution (as civilian fishing vessels have not been made aware of incoming attacks against them by the Chinese maritime militia).

In the unlikely event that an armed conflict is proven to exist, and China is found to have breached principles of IHL, it remains unlikely to hold much practical consequence for China. China would likely reject such a ruling as they did in the 2016 PCA decision with the Philippines and simply continue as they are. An international court finding China to have engaged in armed conflict and breached IHL principles may provide opposing states with more legitimate grounds to push back against China’s activities in the South China Sea, but it does not provide those states any more relative power which they could leverage to halt China’s grey-zone activities.

V.            CONSEQUENCES AND RESPONSES

China has been able to partly achieve their military and economic goals through the use of grey-zone tactics in the South China Sea. They have successfully claimed and constructed islands within the EEZ of other states competing in the region, militarised these islands and expanded the range of their fishing fleets. However, whilst war has not broken out in the region, the accumulation of these gains and at times aggressive tactics have provoked increasingly aggressive responses from other actors in the region. Moreover, China’s legitimacy has been eroded by states successfully challenging the legality of their actions.

China’s increasing presence has also prompted the cooperation of other states to counter-balance China’s influence. The Philippines and Vietnam have grown closer together to condemn China, and both are increasing their own artificial island construction (within their own EEZs) to better establish their presence and counter-balance China. Vietnam added more than 692 acres of land between November 2023 and June 2024, which is more than they had added in the previous two years combined.

Even as Vietnam increases their artificial island building in the South China Sea, the Philippines has been content with this expansion, Philippine Navy Commodore Roy Vincent Trinidad stating, “Vietnam does not initiate illegal, coercive, aggressive and deceptive actions against us, unlike China.” This sentiment was also echoed by Philippine Coast Guard Commodore Jay Tarriela, saying that Vietnam does not “engage in harassing our fishermen or illegally deploying coast guard vessels and maritime militia in the waters surrounding our occupied maritime features.”

China’s grey-zone activity in the region has also prompted response from the US, who has conducted Freedom of Navigation Operations (FONOPS) in the region to maintain a steady presence and deter China’s accumulation of gains. China has condemned this and claimed the US cannot conduct military operations in its EEZ, however the US has noted that they have every right to do so under UNCLOS.

Additionally, to defy China’s assertions that they have sovereign airspace above their artificial islands, the US flew B-52 bombers over Chinese artificial islands in December 2015.