Might's right: China uses military muscle to override legal shortcomings

"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 in his personal capacity 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.

In that context, China is engaging in unsafe behavior in the South China Sea. Instead of firing missiles at U.S. Navy warships or U.S. Navy aircraft while they're operating in the area, China uses lasers towards the pilots, shoulders or crosses the bows. Also, it gives warnings like "if you enter this airspace, even though it's international airspace, you will suffer serious consequences."

"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."