China vs. Malaysia, Indonesia, Vietnam
BREAKTHROUGH - Elfren S. Cruz (The Philippine Star) - January 16, 2020 - 12:00am

I recently read an article that said that Malaysia has joined Indonesia and Vietnam to beat China at its own game: The use of lawfare to settle disputes.

Lawfare is a term that is new to me. It is a form of war consisting of the use of the legal system against an enemy such as by damaging or delegitimizing them, tying up their or winning a public relations victory. The term is a combination of the word law and warfare. Lawfare has been described as “a method of warfare where law is used as a means of realizing a military objective.” 

Last December Malaysia decided to extend its continental shelf, in the South China Sea, by submitting a petition to the United Nations Commission on the Limits of the Continental Shelf (CLCS) According to Dr. Namrata Goswami, a geopolitical analyst:

“ I believe that Malaysia took China by strategic surprise when it submitted a legal petition to the United Nations Commission on the Limits of the Continental Shelf, aimed primarily at staking its sovereign claims to the northern portions of the disputed South China Sea waters. 

Malaysia, at present occupies about five of Spratly islands and lays claim to 12. Any claim on the SCS and its islands is challenged  by China as per its unilaterally imposed nine-dash line, that stretches nearly 2,000 km from its shores close to the 200 nautical miles territorial waters of Malaysia, Vietnam, and the Philippines.””

Malaysia claims that the entire Spratly Islands, including Luconia and James Shoals, are underwater and part of Malaysia’s continental shelf. Goswami explains that this move is a departure from earlier protests by Malaysia on China’s activities. Including the presence of Chinese coast guards near Malaysian territorial waters. She says: “Protest notes were never made public though. To submit to the UN on its continental shelf claim is strategic escalation and beating China at its own game, the use of lawfare to settle disputes.”

Malaysia’s move in using the UN have  far reaching consequences. It will make it difficult for China to use the bilateral approach which it favors and has been using against the Philippines. “Malaysia’s legal submission included an acknowledgement of other claimants namely Indonesia, Vietnam, Philippines, Brunei, Taiwan. This only means the other claimants will now resort to legal means as well. Malaysia’s move is continuation of such legal moves, first brought about by Indonesia in 2008, about its  continental shelf extension vis-a-vis China’s SCS claims.”

The filing of Malaysia’ claim before the UN signifies that China’s Belt and Road Initiative has not worked as a diplomatic and political tool. China has invested billions of dollar worth of infrastructure investment into Malaysia hoping that this would influence Malaysia’s position on the South China Sea controversy. That strategy does not appear to have worked.  Malaysia’s  filing validates “ the International Tribunal in Hague decision in favor of the Philippines submission that China’s nine-dash line claim is illegal.” 

 Gregory Poling maintains that the main purpose of China’s artificial islands in the South China Sea is not to help fight a war against the United States. Beijing’s primary strategy is to use civilian and paramilitary presence to coerce its Southeast Asian neighbors into abandoning their rights. The facilities on these island bases allow hundreds of militia vessels and a large number of coast guard ships to be based hundreds of miles from the China coast for months at a time. These Chinese forces engage in frequent harassment of civilian and law enforcement activities by neighboring states. It has become more and more dangerous for Southeast Asian nations to operate in the South China Sea.

While these Chinese actions are clearly illegal, China’s threat of using superior naval and airpower is being used to dissuade neighboring countries to defend their legitimate territorial waters. 

Recently, however, Vietnam and Indonesia have refused to back down when Chinese forces threatened to enter their territorial waters. The two nations refused to be intimidated and forced the Chinese forces to back down. 

China has so far, on multiple fronts, embraced combative tactics in the South China Sea, ranging from illegal construction of military island bases to spurious legal claims regarding the outer limits of its Exclusive Economic Zone. Its strategy also outright intimidation of neighbors and the dangerous and illegal harassment of non-Chinese vessels operating international waters. A study by the publication, National Interest, revealed the following:

“ A major component of China’s in the SCS involve the use of gray zone operations which, according to the National Defense Strategy Commission  take place in the ‘space between war and peace’ and ‘include everything from strong arm diplomacy and economic coercion to media manipulation and cyberattacks  to use of paramilitaries and proxy forces. Gray zone tactics aim to ‘confound or gradually weaken an adversary’s positions or resolve without provoking a military response.

A feature of China’s strategy is the use of spurious legal claims like the so-called nine dash line. Despite the 2016 Permanent Court of Arbitration ruling that firmly rebuked China’s claims to the SCA, Beijing continues flagrantly assert its “indisputable sovereignty over the SCA.”

The question now is whether the examples of Malaysia, Indonesia and Vietnam of standing up against an assertive China can be followed by other countries in the region. 

Creative writing classes for kids and teens

Young Writers’ Hangout on Dec. 7 with Gail Villanueva and Dec. 14  with Rin Chupeco (1:30 pm-3pm; stand-alone sessions) at Fully Booked BGC. For details and registration,  email writethingsph@gmail.com.

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Email: elfrencruz@gmail.com

CLCS GREGORY POLING
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