By Michael Montemalo Contributing Writer November 7th, 2016

In May 2016, an Indonesian Navy Destroyer intercepted a Chinese fishing trawler operating within disputed waters. The Chinese trawler did not surrender until the Indonesian Navy fired two warning shots across its bow. Following the incident, the Indonesian Navy arrested the Chinese crew and attempted to tow the trawler into port, but a Chinese Coast Guard (CCG) vessel rammed the fishing trawler and set it free.

International consensuses govern maritime rights, freedom of the seas, and freedom of navigation; they aim to provide stability, aid growth, and assist peaceful conflict resolution. However, they are not immune from exploitation. China takes advantage of such consensuses through the ambiguous and sometimes paramilitary nature of its Coast Guard to enforce its presumed territory without international repercussion. Such actions are a form of lawfare, a type of asymmetric warfare, consisting of using the legal system against an enemy.

Using legal ambiguity and sheer might, the Chinese have sparked a maritime arms race in the South China Sea that increases the risk of misinterpretation and miscalculation between the nations of Southeast Asia and China. Using the region’s fears of Chinese hegemony to its advantage, China is able to operate without consequence and further enforce its territorial claims. One method China uses to enforce its maritime claims is by transforming its coast guard into a paramilitary force. Having a clear distinction between a coast guard and navy is important for both operational and strategic planning and calculation. Generally, the Coast Guard’s white hulls serve a law enforcement role while the Navy’s gray hulls serve a national security role. With blurred lines, the risk for escalation increases. China’s Coast Guard’s militarization has provoked Vietnam, Indonesia, and the Philippines into upgrading and expanding their own fleets. As a result, the Center for Strategic and International Studies estimates there have been thirty clashes between the Chinese Coast Guard and foreign vessels in the South China Sea since 2010.

Both international consensuses and laws of physics favor larger vessels, and China’s upgraded Coast Guard will use these advantages. The International Regulations for Preventing Collisions at Sea (COLREGs) mandates that larger vessels have the right-of-way when crossing the path of a smaller vessel. If the new Chinese Coast Guard 3901 crosses paths with a U.S. Navy Destroyer, the warship legally has to give way; though it is unlikely to actually do so. Beyond maritime law, whoever operates the largest ships gains an advantage at sea under more aggressive circumstances. As with the incident between China and Indonesia, the increasingly popular tactic of ramming ships against each other favors the larger vessel.

Since 2007, the Chinese People’s Liberation Army-Navy (PLA-N) has transferred hundreds of warships to the Chinese Coast Guard, and is in the process of building a larger fleet. The only operators of comparable vessels within East and Southeast Asia currently are the United States and Japan. Still, the Chinese Coast Guard is constructing even larger vessels. The Chinese Coast Guard 3901 and its sister ship Chinese Coast Guard 3902 each displace 12,000-15,000 tons, more than the U.S. Navy Ticonderoga-Class Cruiser and Arleigh-Burke-Class Guided Missile Destroyer.

Supporters of the current international order must make a concerted effort to expand and enforce the existing rules of maritime law, and disallow Beijing’s use of lawfare. To accomplish this, the United States must continue its efforts to integrate China into the international system. China is still finding its place in the world, as Deng Xiaoping famously said, it is “crossing the river by feeling the stones.” China’s stake in the system is large, and therefore its cooperation is imperative to foster legitimacy. However, China cannot be allowed to hijack the system for its own purposes. Lax attitudes against these actions foster an environment of disregard for international law. The United States needs to pull China across the river and fully into its established order, and must not allow China to exploit existing loopholes in international law.

The system of international rules and norms created in the wake of the Second World War, and supported by the United States, is full of self-defeating problems such as the one China’s Coast Guard currently exploits. In the case of the United Nations Convention on the Law of the Sea (UNCLOS), definitions between military and law enforcement activity are ambiguous and ratification is voluntary. Ironically, China is a party to UNCLOS while the United States is not. Yet, the U.S. vigorously supports UNCLOS while China in some instances ignores it. Furthermore, these rules and laws do not govern the actions of China’s Coast Guard since they are not explicitly regulated. China can choose when to enforce the laws and when not to. With its expanding and increasingly militarized Coast Guard, China is poised to continue engaging in lawfare to the detriment of the international system itself.

The United States and all supporters of the international system should encourage Chinese integration and discourage manipulating the system for China’s own gain. As Sun Tzu said, “supreme excellence consists of breaking the enemy’s resistance without fighting.” There is no need for saber rattling against the Chinese, just a forceful nudge into the liberal international order.

Michael Montemalo is a master’s candidate at the Elliott School of International Affairs. He is in the Security Policy Studies program, specializing in defense analysis, strategic concepts, and military history. Michael focuses regionally in East and Southeast Asia, with an eye on China. He writes on maritime security issues, military technology, and geopolitics. He is from Rochester, New York.

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