OPINION | A step-change to Beijing’s “lawfare” in the South China Sea

Recent Chinese maritime activity around the Second Thomas Shoal marks a potentially new and more aggressive stage in China’s campaign to extend control over the South China Sea. Concerningly, the same type of behaviour has now expanded to Sabina Shoal, only 86 nautical miles from the Philippines island of Palawan. Chinese assertiveness is spreading laterally, becoming more violent, and may well be tied to new laws China recently granted itself.

China has long used “lawfare” – leveraging legal systems and principles to achieve military and strategic objectives – to exploit the seams that democracies have between military and civilian activities. They create and exploit legal ambiguities as part of a deliberate strategy.

As the PLA Daily commented in describing the People’s Armed Force Maritime Militia (PAFMM), a para-military organisation: “Putting on camouflage, they qualify as soldiers; taking off the camouflage, they become law-abiding fishermen.”⁠

On June 15, China implemented the “Provisions on Administrative Enforcement Procedures for Coast Guard Agencies 2024”, also known as CCG Order #3. This law allows China Coast Guard (CCG) commanders to detain foreign vessels and personnel for up to 30 days (or 60, for “complicated” issues) if they are in “waters under Chinese jurisdiction”.

Such jurisdiction is not defined, although it is likely based on the flawed Nine-Dash Line concept that the Permanent Court of Arbitration ruled illegal in 2016.

"The increasing level of violence is concerning enough, but China’s intimidation has now moved even closer to the Philippines."

The first target for these new powers was the Second Thomas Shoal, known as Ayungin Shoal in the Philippines, which is well within the Philippines exclusive economic zone (EEZ) but almost 600 miles (960 kilometres) from Hainan Island, the nearest Chinese territory.

The Philippines deliberately ran a ship, the navy landing ship BRP Sierra Madre, aground on Second Thomas Shoal in 1999 and have kept a contingent of marines there ever since. China has repeatedly objected to the Philippine presence and while it has regularly interfered with resupply missions, its long-term strategy seems to have been to allow the ship to deteriorate. However, when the Philippines started transporting building supplies to repair the vessel in 2023, China’s actions became more aggressive.

In 2021, there were typically less than five Chinese vessels around Second Thomas Shoal during Philippine resupply missions, but that number peaked at almost 50 by the end of 2023. The number fell in early 2024 before rising to 20 in mid-year, accompanied by greater violence and intimidation.

In February 2023, China used a military-grade laser and in August, lasers and water cannons to harass Philippine vessels. Throughout 2024, there have been numerous clashes, culminating in an incident on June 17 that saw eight Philippine servicemen injured, one losing a thumb.

The increasing level of violence is concerning enough, but China’s intimidation has now moved even closer to the Philippines, with five significant incidents in the recent weeks around Sabina Shoal. After a series of such incidents on August 22, China Coast Guard spokesman Geng Yu said a Philippine vessel had “deliberately collided” with a CCG vessel:

"Philippine Coast Guard vessels illegally entered the waters near the Xianbin Reef in the Nansha Islands (China’s terms for Sabina Shoal and the Spratly Islands, respectively) without permission of the Chinese government. The China Coast Guard took control measures against the Philippine vessels in accordance with the law."

"China may, by its own actions, be partially reducing the very ambiguity it seeks to exploit."

China has successfully blurred the lines between civilian and military activity, both in building artificial islands in the South China Sea, which has been very successful (the Asia Maritime Transparency Initiative shows the progression of these features from coral atolls to substantial military bases), and lawfare, which is following the same trajectory.

Historically, much of the harassment of Philippine (and other) vessels was not done by the CCG but by the Peoples Armed Force Maritime Militia (PAFFM). However, since the introduction of CCG Order #3, the CCG has taken a more direct role, presumably to set precedents for operation of that law.

This trend could mark a step change in China’s approach to dealing with what it sees as jurisdictional challenges in the South China Sea, particularly as the CCG’s increasingly militaristic behaviour in recent years (and particularly in recent months) impacts on its ability to claim civilian status. China may, by its own actions, be partially reducing the very ambiguity it seeks to exploit.

The “salami slice” approach to island building in the South China Sea has worked well for China. The world risks seeing that same approach repeated in international law, upturning key aspects of the Law of the Sea Convention and presenting the world with a fait accompli.

Given Australia’s interest in the trade routes which run through the South China Sea, maritime security and stability is vital. It may well be time for the international community to collectively increase tangible support to help protect the Philippines's EEZ and uphold the Law of the Sea Convention.

This story originally appeared on The Interpreter, published by the Lowy Institute for International Policy.