US, China wage legal warfare over control of the South China Sea: Gertz

The United States is stealing a page from China’s strategic playbook in using international law as a means to counter expansive maritime claims in the South China Sea.

The three-year old case between China and the Philippines over the South China Sea at the United Nations Permanent Court of Arbitration Tribunal in The Hague will end Tuesday when the court’s ruling is announced.

US officials say the ruling is expected to favor the Philippines in the maritime dispute and provide a solid basis in traditional international law for pushing back against China’s claims.

Those Chinese claims are the basis for what many analysts say is a concerted effort by Beijing to take control of the South China Sea using newly-created islands built in the Paracels and Spratlys island chains. The new islands are now being militarized by the People’s Liberation Army.

The alleged on-going land reclamation of China at Subi reef is seen from Pagasa island (Thitu Island) in the Spratlys group of islands in the South China Sea, west of Palawan, Philippines, May 11, 2015. REUTERS/Ritchie B. Tongo/Pool/File Photo

The alleged on-going land reclamation of China at Subi reef is seen from Pagasa island (Thitu Island) in the Spratlys group of islands in the South China Sea, west of Palawan, Philippines, May 11, 2015. REUTERS/Ritchie B. Tongo/Pool/File Photo

Legal line in the sand

At a congressional hearing last week, the Pentagon’s main China policymaker made clear the arbitration conclusion is significant. “The ruling will mark an important crossroads for the region, will present an opportunity for those in the region to determine whether the Asia-Pacific’s future will be defined by adherence to international laws and norms that have enabled it to prosper, or whether the region’s future will be determined by raw calculations of power,” Abraham Denmark, assistant defense secretary for East Asia said.

Denmark outlined the US government’s efforts in the region as increasing military presence and stepped up operations while working to bolster alliances with states opposing Chinese hegemony. The goal is to “uphold key principles at the heart of the rules-based international order: upholding customary international law, unimpeded lawful commerce, freedom of navigation and overflight, and peaceful resolution of disputes.”

The Chinese built some 3,200 acres of islands between December 2013 and October 2015. During that time, they have used low-intensity coercion in the sea by operating China coast guard and PLA navy ships in near continuous patrols. New regulations designed to control fishing in what are regarded by regional states as international waters also were issued by China as part of its legal claims to the waters.

The military buildup – the most recent aspect of Chinese South China Sea takeover efforts – is the most troubling aspect for the Pentagon most. It has included the deep-water ports, new communications and surveillance gear, and three military-grade air strips. In the past year, Beijing added radar, anti-ship cruise missiles, surface-to-air missiles and fighter jets on regular rotations.

According to Denmark, the Chinese are planning more military facilities, including the construction of hangars, anti-aircraft guns, and fuel and water underground storage facilities to support extended deployments of multiple aircraft and ships.

One reason the US government is confident the UN court ruling will go Manila’s way is that China rejected taking part in the legal proceedings, claiming the court lacked jurisdiction. But the court in 2015 rejected that argument, thus opening the way for Philippines to gain a strategic legal victory in countering China’s claims of sovereignty over the nearby Spratlys.

While asserting frequently that it does not take sides in the maritime dispute, the US government is expected to use the court ruling to pressure Beijing to abide by the traditionally-accepted precepts of international law, and not China’s questionable, communist-style interpretations that it asserts has given it control of 80% of the South China Sea.

The tactic is taken directly from China’s use of legal warfare in territorial disputes, as outlined in a 2013 Pentagon study called “China’s Three Warfares” – legal, media and psychological. The study says China views the United States as a leading practitioner of lawfare, as seen in the marshaling of international support for the 1991 and 2003 Iraq wars.

In the South China Sea, Chinese lawfare has used rotating arguments to back its claims. First, China has asserted that the sea is sovereign territory based on questionable historical claims. Second, Beijing has issued domestic laws and created an administrative region. Both have been challenged by other states, notably Vietnam and Philippines.

A Chinese Coast Guard vessel (R) passes near the Chinese oil rig, Haiyang Shi You 981 (L) in the South China Sea June 13, 2014. REUTERS/Nguyen Minh/File Photo

A Chinese Coast Guard vessel (R) passes near the Chinese oil rig, Haiyang Shi You 981 (L) in the South China Sea June 13, 2014. REUTERS/Nguyen Minh/File Photo

Countering Chinese lawfare

The Pentagon study calls for countering Chinese lawfare by challenging the legal basis to the “historic rights” notion, and by publicly taking the dispute to the court of international public opinion. The court ruling will provide an important first step.

Michael Pillsbury, director for Chinese strategy at the Hudson Institute, has called for incorporating countermeasures to Chinese legal warfare in US operational planning and training, such as including legal teams with military units that can provide documentation to dispute charges of illegal activities.

As for the court ruling, it will give the United States a key opportunity to counter China’s legal claims to the South China Sea.

“The UN court ruling will provide ample legal ammunition for American global messaging that China’s view of international law and the world is not consistent with that of the vast majority of other nations,” Pillsbury said.

Bill Gertz is a journalist and author who has spent decades covering defense and national security affairs. He is the author of six national security books. Contact him on Twitter at @BillGertz

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