Hybrid Threats and Grey Zone Conflict Symposium – The Maritime Domain
Editors note: The following post highlights a chapter that appears in Mitt Regan and Aurel Sari’s recently published book Hybrid Threats and Grey Zone Conflict: The Challenge to Liberal Democracies. For a general introduction to the series, see Prof Mitt Regan and Prof Aurel Sari’s introductory post.
This post highlights a few of the major themes canvassed in Chapter 12 (The Maritime Domain) of Hybrid Threats and Grey Zone Conflict. The chapter notes that the terms “hybrid threats” and “grey zone” have been used with increasing regularity over the past few decades to describe a variety of actions that have taken place at sea. The main purpose of conducting maritime activities in this manner is to ensure uncertainty surrounds their legal characterisation.
As an initial observation, the overall aim of the chapter is to look at maritime hybrid threats and grey zone activities and assess the legal issues that arise from these threats and activities. Also, the chapter looks at the actions of States rather than non-State actors, with an understandable focus on recent events in the South China Sea. However, it notes that activities involving Chinese vessels in the South China Sea are not the only examples of States using vagueness and uncertainty to mask the proper legal characterisation of their maritime activities.
Hybrid Threats
The chapter begins with some introductory thoughts regarding political warfare, hybrid threats, and the grey zone. This part invites the reader to understand the purpose of conducting operations not clearly defined along the spectrum of armed conflict, especially those that use obfuscation and imprecision to cloud the nature and legal characterisation of the operation. The chapter identifies the term “political warfare” as an overarching concept that includes hybrid operations and grey zone operations before proceeding to deal with definitional issues relating to maritime hybrid threats.
In this context, the chapter notes that agreement on a settled definition for “hybridity” does not exist but it notes there is some commonality in terms of the types of activities regularly considered to represent examples of hybrid operations. These activities include the use of conventional and unconventional forces, irregular tactics, subversion, coercion, foreign interference in domestic affairs, and linkages to criminal activity.
Hybrid activity can emanate from overt and covert actions by States, as well as from non-kinetic actions that fall well short of the threshold for armed conflict and actions clearly part of conventional warfare. In short, the chapter notes that hybrid threats can appear anywhere along the spectrum of conflict. In the maritime context, States have leveraged hybrid activities by exploiting vulnerabilities in international legal norms to gain an advantage they could otherwise only achieve through much more direct methods.
What is the Maritime Grey Zone?
The next question the chapter poses concerns whether a maritime grey zone actually exists. A legal positivist view suggests there is no grey zone (at least in relation to warfare), as a proper legal threshold assessment nearly always results in a binary decision as to whether armed conflict exists. Yet States frequently disagree as to where the ultimate authority for such assessments lies (that is, unless the United Nations Security Council uses its Chapter VII powers to settle the issue, as occurred with UNSC Resolution 2098 in 2013).
The next topic assesses the application of the term “grey zone” to maritime activities. The first observation the chapter makes on this point is that the term could relate to an activity that takes place in the maritime domain, such as the use of non-State vessels to achieve a State’s political and strategic aims, with the consequent legal uncertainty regarding the type of response the State subject to the activity should take. The chapter then notes that “grey zone” could also refer to the area of uncertainty in which a particular activity falls, with an aggressor State seeking to exploit legal doubt to obtain political or territorial gains that would otherwise only be available through military action.
The intent of either of the above two descriptions of “grey zone” is for a State to obscure the real character of its behaviour, thereby creating legal uncertainty surrounding any responses to that State’s behaviour. In particular, the chapter discusses China’s successful use of these tactics in the South China Sea, given China’s ability to construct and occupy artificial islands, and subsequently militarize these islands, in circumstances of doubtful lawfulness.
UN Convention on the Law of the Sea and the Maritime Grey Zone
The employment of maritime hybrid threats and grey zone activity have also threatened the concept of the UN Convention on the Law of the Sea (UNCLOS) as a “package deal” that provides an overarching framework within which parties can deal with matters of ocean governance. While the deliberate flexibility in UNCLOS was an essential element of reaching the final agreement on the Convention’s text in 1982, it is simultaneously a weakness through which a State can operate and conduct maritime grey zone operations.
The “military activities” exception in Article 298(1)(b) of UNCLOS offers an example of how States can exploit differences in UNCLOS interpretations. The Arbitral Tribunal in the South China Sea Arbitration, for example, looked at the activities of Chinese vessels in the vicinity of Second Thomas Shoal and found that it lacked jurisdiction to consider the Philippines’ submissions regarding these activities due to China’s declaration pursuant to Article 298(1)(b). However, in reasonably similar factual circumstances, the International Tribunal for the Law of the Sea (ITLOS) reached a completely different conclusion regarding its jurisdiction to hear the request for “provisional measures” lodged by Ukraine following the Russian Federation’s seizure of Ukrainian vessels in the Kerch Strait.
These two interpretations of the military activities exception leave considerable room for ongoing uncertainty among States regarding how tribunals and judicial bodies will assess any particular activity occurring at sea where a State attempts to invoke a declaration under Article 298(1)(b). The broad approach to what activity falls within the scope of an Article 298(1)(b) declaration adopted by the Arbitral Tribunal contrasts markedly with the more restrictive reasoning that ITLOS used in reaching its conclusion in the Kerch Strait case.
Solutions, Responses, and Concluding Thoughts
The remainder of the chapter looks at some recent instances of how States have used the ambiguity that accompanies hybrid threats and the grey zone to pursue their objectives in maritime regions. The chapter assesses China’s actions following the decision in the South China Sea Arbitration, as well as the Chinese responses to increased transits of the South China Sea by the U.S. Navy and other naval forces, including those of the United Kingdom’s Royal Navy and the Royal Australian Navy.
As for solutions and responses to hybrid threats and grey zone tactics, the chapter does not identify any radical options to reduce State reliance on such tactics. Rather, it notes that recent behaviour by Russia and China provides cause for concern regarding their willingness to continue to use legally dubious practices to pursue their goals, particularly when interacting with weaker States that are unable to easily counter such tactics. Ongoing challenges to accepted legal norms in the maritime domain, through hybridity and the use of the maritime grey zone, will continue to be commonplace for the foreseeable future.
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David Letts is Director of the Centre for Military and Security Law at the Australian National University College of Law.
Photo credit: SkySat